Citation Nr: 0809724 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-09 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date prior to June 30, 2000, for a grant of service connection for bipolar disorder with panic, agoraphobia, and psychotic features. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from October 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Appeals Management Center (AMC) in Washington, D.C. The claim is presently under the jurisdiction of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDINGS OF FACT 1. Service connection for post-traumatic stress disorder (PTSD) and mental disorder was denied a rating action of February 1999; the veteran did not thereafter perfect a timely appeal. 2. The veteran's claim to reopen the issue of entitlement to service connection for a psychiatric disorder was received on June 30, 2000. 3. Accompanying the June 30, 2000, claim submitted by the veteran was a photocopy of a letter, dated January 14, 2000, from a VA social worker to the Buffalo RO; this letter, in support of his claim, can reasonably be construed as an informal claim of entitlement to service connection for a psychiatric disorder. CONCLUSION OF LAW The criteria are met for an effective date of January 14, 2000, but no sooner, for a grant of entitlement to service connection for a bipolar disorder with panic, agoraphobia, and psychotic features. 38 U.S.C.A. §§ 1110, 1113, 1116, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.303, 3.307, 3.309, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in September 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. The claim was readjudicated in the January 2006 statement of the case. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Analysis The effective date of an award of service connection based on a claim received more than one year after a veteran's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as best friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Where evidence requested in connection with a claim to reopen is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation shall not commence earlier than the date of filing of the new claim. 38 C.F.R. § 3.158. The veteran claims that the award of entitlement to service connection for psychiatric disability should date from January 1998, because that is when he sought to reopen a previously denied claim for "mental problems." See VA Form 21-4138, received January 12, 1998. Review of the procedural history of this claim shows that a February 1993 letter from a private psychiatrist was taken by VA as a claim for service connection of a mental disorder. The RO denied this claim in April 1994. The veteran was notified in April 1994 and did not appeal. The veteran sought to reopen his claim on January 12, 1998. See VA Form 21-4138. He later submitted a claim for PTSD in June 1998. See VA Form 21-4138. VA denied entitlement to service connection for PTSD (on a direct basis) and for a mental disorder (on a new and material basis) in a February 1999 rating decision. Notice was provided in February 1999. The veteran did not appeal this decision. Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim, such as the veteran's, may be reopened when new and material evidence is presented or secured with respect to that claim. The veteran did not submit a claim to reopen his previously disallowed claim of entitlement to service connection for a "mental health" disorder until June 30, 2000. Associated with his claim to reopen was a letter from a VA social worker dated January 14, 2000. In the social worker's letter, it was noted that the veteran had received mental health treatment for a prolonged period of time. Various psychiatric-based diagnoses were provided, including bipolar disorder and PTSD. The social worker opined, however, that whatever psychiatric disorder the veteran in fact had should be service-connected. By rating action in January 2001, the RO essentially found that new and material evidence had not been submitted to reopen the previously denied service connection claims for PTSD and schizophrenic disorder/bipolar disorder. The veteran perfected a claim to the January 2001 rating decision. The Board, in January 2004, found that new and material evidence had been submitted to reopen the veteran's claim of entitlement to service connection for an acquired psychiatric disorder. In December 2004, the RO granted service connection for bipolar disorder with panic, agoraphobia, and psychotic features, effective June 30, 2000. A 100 percent disability rating was assigned. There is no evidence revealing that the veteran indicated an intent to apply for service connection for a psychiatric disorder between the final disallowance of the claim in February 1999 and the date of receipt of the claim to reopen on June 30, 2000. With regard, however, to the January 14, 2000, VA correspondence, which accompanied the veteran's June 30, 2000, claim to reopen, case law provides that VA is deemed to have constructive notice of the existence of this VA document, which expressed entitlement to service connection for a psychiatric disorder, from the date of its creation. Bell v. Derwinski, 2 Vet. App. 611, 612 (1992). As such, the January 14, 2000, letter was an informal claim for service connection. See 38 C.F.R. § 3.157. Therefore, the appropriate effective date is January 14, 2000 -- the date of the letter from the VA social worker. Since the veteran's June 2000 claim to reopen was received within a year of this letter, January 14, 2000, is the earliest possible effective date for the grant of service connection bipolar disorder with panic, agoraphobia, and psychotic features. For these reasons, an effective date of January 14, 2000, but no sooner, is granted for service connection for a bipolar disorder with panic, agoraphobia, and psychotic features. All reasonable doubt has been resolved in the veteran's favor. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In reaching this decision the Board considered the free standing claim that service connection should date from January 1998. This argument, however, ignores the final nature of February 1999 rating decision. 38 U.S.C.A. § 7105 (West 2002). Absent a claim that the February 1999 rating decision was itself clearly and unmistakably erroneous, any challenge to an effective date prior to the date of that decision is barred. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (a free standing claim for earlier effective dates vitiates the rule of finality). While the Board has found that an effective date of January 14, 2000, is appropriate for the grant of service connection for bipolar disorder with panic, agoraphobia, and psychotic features, the Board expresses no opinion as to what disability rating is warranted effective from January 14, 2000. ORDER An earlier effective date of January 14, 2000, but no sooner, is granted for service connection for bipolar disorder with panic, agoraphobia, and psychotic features, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs