Citation Nr: 1125607 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 10-39 093 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to permanence of the 100 percent schedular disability rating for service-connected bipolar disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD A. L. Tarr, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to November 1991, and from February 1995 to July 1996. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2009 rating decision in which the RO, inter alia, assigned a temporary 100 percent disability rating for bipolar disorder, effective March 17, 2009, and increased the disability rating for bipolar disorder to 100 percent, effective August 4, 2009. In that rating decision, the RO determined that since there was a likelihood of improvement of bipolar disorder, the assigned rating was not considered permanent and was subject to future review examination. In January 2010, the Veteran filed a notice of disagreement (NOD) as to the RO's determination that the 100 percent rating for bipolar disorder was not permanent. A statement of the case (SOC) was issued in August 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2010. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran's bipolar disorder has not been medically established to be static, he is less than 55 years of age, his 100 percent schedular disability rating has been in effect for less than 20 years, and there is no competent, probative evidence establishing that the Veteran's total impairment due to service-connected bipolar disorder is permanent. CONCLUSION OF LAW The criteria for the assignment of a permanent 100 percent disability rating for bipolar disorder are not met. 38 U.S.C.A. §§ 501, 1156, 5107 (West 2002); 38 C.F.R. §§ 3.327, 3.340, 3.341, 3.951 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating for service-connected bipolar disorder, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The May 2009 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. This letter also letter set forth the criteria for higher ratings for bipolar disorder. The November 2009 RO rating decision reflects the initial adjudication of the claim after issuance of the May 2009 letter. Thereafter, the August 2010 SOC included information pertaining to the establishment of a permanent disability rating. Moreover, the claims file reflects that the Veteran and his representative had actual knowledge of the information and evidence needed to support his claim for a permanent rating for bipolar disorder. In this regard, in the January 2010 NOD, the Veteran asserted that his bipolar disorder was permanent in nature, and therefore, not subject to a future examination. This statement demonstrates an awareness of what is necessary to support the claim; hence the Board finds that any omission in notice provided is harmless because the Veteran had actual knowledge of what the evidence must show to support the claim for a permanent disability rating. See, e.g., Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of November 2003 and January 2010 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim for a permanent disability rating is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends that his bipolar disorder is permanent in nature and that it will not improve. As such, he believes that he is entitled to a permanent total disability rating for his service-connected disability and that he should not have to undergo any further VA examinations. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. See 38 C.F.R. § 3.340(b) (2010). Full consideration must be given to unusual physical or mental defects in individual cases. 38 C.F.R. § 4.15. Once permanence is established, a veteran need not undergo further VA examinations in order to retain his 100 percent disability rating for the permanent disability. See 38 C.F.R. § 3.327(b)(2)(iii) (2010). Permanence is essentially a medical question, which requires competent medical evidence; neither the Board nor the RO may exercise its own independent medical judgment on such a question. See Elcyzyn v. Brown, 7 Vet. App. 170, 176 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Rating agencies are to handle cases affected by changes in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the VA laws and regulations. 38 C.F.R. § 3.344 (2010). However, when a disability has not become stabilized or is likely to improve, re-examination, and, if necessary, reevaluation of the assigned disability rating is warranted. Id. Re-examination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. See 38 C.F.R. § 3.327(a) (2010). Generally, re-examinations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. Following the initial VA examination or other scheduled examination, any reexamination determined to be in order will be scheduled within not less than two years and not more than five years. Id. No periodic future examinations will be requested where: 1) the disability is established as static, 2) the findings and symptoms are shown by examination to have persisted without material improvement for a period of 5 years or more, 3) the disability from disease is permanent in character and of such nature that there is no likelihood of improvement, 4) the Veteran is over 55 years of age, except under unusual circumstances, 5) the rating is a prescribed scheduled minimum rating, or 6) a combined disability rating would not be affected if the future examination should result in reduced evaluation for one or more conditions. See 38 C.F.R. § 3.327(b) (2010). However, none of the above guidelines are to be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that disabilities are accurately rated. 38 C.F.R. § 3.327(a) (2010). Historically, in a December 2003 rating decision, the RO granted service connection for bipolar disorder and assigned a 70 percent disability rating, effective December 20, 2002. In a November 2009 rating decision, the RO granted a temporary 100 percent disability rating from March 17, 2009 through June 30, 2009 (due to hospitalization) and increased the Veteran's rating for bipolar disorder to 100 percent, effective August 4, 2009; however, the RO also found that the rating was not considered permanent and was subject to future examination. In an August 2010 rating decision, the RO changed the effective date of the award of a 100 percent rating for bipolar disorder to July 1, 2009. Initially, the Board notes that the 100 percent rating has been in effect for less than 20 years; thus, it has not reached protected status. See 38 C.F.R. § 3.951(b) (2010). Further, the Board notes that, in the November 2009 rating decision, the RO indicated that future examination was necessary. In this case, VA is permitted to request periodic future examinations for the Veteran's bipolar disorder. The Board notes that the Veteran's bipolar disorder has not been established as static. Rather, as noted above, following the grant of the 100 percent disability rating for bipolar disorder, the RO determined that a re-examination should be scheduled to determine if there was a change in symptomatology. Additionally, because the 100 percent rating has only been in effect since July 2009, there is no evidence that the Veteran's bipolar symptoms have persisted without material improvement over a period of 5 or more years. Further, the Veteran is not over 55 years of age. Moreover, with regard to possible improvement of the Veteran's bipolar disorder, the evidence does not show that this disability is of such nature that there is no likelihood of improvement. Rather, the most recent medical evidence of record reflects that the Veteran's future prognosis is uncertain and may be subject to improvement. The Veteran most recently underwent VA examination in January 2010. The examiner noted that the prognosis of the Veteran's bipolar disorder was unclear. He stated that the Veteran frequently osculates between depression and mania. He was hopeful that, with treatment, the Veteran would be able to effectively control the symptoms of his bipolar disorder. He indicated that if the Veteran was able to control his symptoms, his quality of life and level of functioning would vastly improve. This opinion is consistent with VA treatment records that reflect some improvement of the Veteran's depression with medication. Finally, the Board notes that even if the symptomatology of the Veteran's disability were considered static, because the rating is not protected, it is still within VA's purview to schedule another VA examination to assess the current severity of the disability. See 38 C.F.R. §§ 3.327 (2010). Accordingly, the claim for permanence of the 100 percent schedular disability rating must be denied. See 38 C.F.R. §§ 3.327, 3.344, 3.951(b) (2010). In reaching the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56. ORDER The claim for permanence of the 100 percent schedular disability rating for bipolar disorder is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs