Citation Nr: 0814457 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-19 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than October 5, 2000, for the grant of service connection for bipolar disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from August 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The veteran's file was subsequently transferred to the Denver RO. The Board remanded the veteran's claim in May 2007 because the veteran did not receive adequate VCAA notice. The requested action was completed and the claim is now appropriately before the Board for review. The veteran appeared and testified at a videoconference hearing at the Denver RO in June 2006. A transcript is of record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. An original claim of service connection for bipolar disorder was received at the RO on October 5, 2000. CONCLUSION OF LAW Criteria for assignment of an effective date earlier than October 5, 2000, for the grant of service connection for bipolar disorder have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.155 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in May 2007, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in that same letter. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VCAA notice was not given prior to the appealed AOJ decision. As noted above, the Board remanded the claim so as to properly advise the veteran as to the evidence necessary to substantiate his claim for an earlier effective date for his service-connected bipolar disorder. The Court specifically stated in Pelegrini, however, that it was not requiring the voiding or nullification of any AOJ action or decision if adequate notice was not given prior to the appealed decision, only finding that appellants are entitled to VCAA-content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based. Because proper notice was provided in May 2007 and a Supplemental Statement of the Case was issued subsequent to that notice in January 2008, the Board finds that notice is pre-decisional as per Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. In June 2006, the veteran appeared and testified at a videoconference hearing at the Denver RO. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file. In fact, the veteran submitted a communication to VA in June 2007 indicating that he had no additional evidence to submit to substantiate his claim. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that he is entitled to an effective date earlier than October 5, 2000 for his service-connected bipolar disorder. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. The applicable statutory and regulatory provisions require that the VA look to all communications from the appellant which may be interpreted as applications or claims-formal and informal-for benefits. In particular, the VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such 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. The RO considered the veteran's October 2000 request for an increased rating of his service-connected traumatic brain disease as the date of claim for service connection for bipolar disorder. The veteran filed a secondary service connection claim in February 2001 regarding neuron-cognitive psychiatric conditions as secondary to his skull fracture/brain trauma. In addition to his service-connected head injury, the veteran was granted service connection for bipolar disorder in a March 2002 rating decision. In a July 1987 VA record, the veteran was diagnosed as having an organic personality disorder. In a February 1998 VA treatment note, the veteran advised that he was treated for bipolar disorder in 1987. A treatment noted dated in April 1998 indicated that the veteran was diagnosed as having bipolar disorder in August 1997. No request or intent to file a claim of service connection for bipolar disorder was noted in the treatment records. In a February 2001 letter from the veteran's psychiatrist, an opinion was given as to the etiology of the veteran's mood disorder. The psychiatrist opined that the veteran's incapacitating mood disorder was related to the head injury he experienced in service. That same month, the veteran submitted a service connection claim for his bipolar disorder as secondary to his service- connected skull fracture/brain trauma. In the claim, the veteran's representative requested a separate evaluation for the veteran's neuro-cognitive psychiatric conditions. Following a complete review of the record, there is no evidence of an informal claim of service connection for bipolar disorder prior to October 5, 2000. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (concluding that the Board must "review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claim"). No other submission from the veteran prior to October 5, 2000, identified a sought benefit of service connection for bipolar disorder. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that plain language of regulations require claimant to have intent to file claim for VA benefits). In fact, the RO generously interpreted the veteran's October 2000 request for an increased rating as the date of receipt of an informal claim for service connection for bipolar disorder. Thus, the veteran's claim for an earlier effective date is denied. ORDER An earlier effective date for service connection for bipolar disorder is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs