Citation Nr: 1301700 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-04 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than November 5, 2004 for the award of a 100 percent rating for dysthymic disorder with bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to June 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, awarded a 100 percent evaluation for service-connected dysthymic disorder effective November 5, 2004. In October 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. FINDING OF FACT The Veteran's dysthymic disorder with bipolar disorder was assigned a 100 percent disability rating effective November 5, 2004; it is factually ascertainable that the increase in disability occurred on February 18, 2004. CONCLUSION OF LAW The criteria for an effective date of February 18, 2004, but not earlier, for the award of a 100 percent rating for dysthymic disorder with bipolar disorder have been met. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for dysthymic disorder was granted in an April 1992 rating decision with an initial noncompensable evaluation assigned effective July 1, 1991. An increased 100 percent evaluation was awarded in the April 2005 rating decision on appeal, effective November 5, 2004. The Veteran contends that a total rating should be effective from December 2001, the date he filed an earlier claim for an increased rating. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). The Board must first determine the date the Veteran's claim for an increased rating was received. The Veteran contends that the appropriate effective date for the award of a total rating for his dysthymic disorder is December 18, 2001, the date he filed a claim for an increased rating. Review of the record verifies that the Veteran filed a claim for an increased rating for his psychiatric disorder (then rated as 10 percent disabling) on December 18, 2001. The claim was adjudicated in a January 2003 rating decision and an increased 30 percent evaluation was assigned effective December 18, 2001. The Veteran initiated an appeal with respect to the assignment of a 30 percent rating and a statement of the case (SOC) was issued in November 2003. The Veteran perfected his appeal with a January 2004 substantive appeal, but then withdrew the appeal in an October 2005 statement. As the Veteran withdrew the appeal originating from the January 2003 rating decision, the January 2003 rating decision is a final adjudication of the claim received in December 2001. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.204 (2012). Therefore, the December 2001 claim for an increased rating cannot serve as the basis for the current appeal for an earlier effective date. The Board finds that the Veteran's current appeal originates from an increased rating claim that was received on November 5, 2004. The record contains no other communications from the Veteran between December 2001 and November 2004 that could serve as an earlier formal or informal claim for increased benefits. See 38 C.F.R. § 3.155. The claim for an increased rating was adjudicated in the April 2005 rating decision on appeal and the Veteran's dysthymic disorder was evaluated as 100 percent disabling effective November 5, 2004. Although the RO considered the April 2005 rating decision final, the Board has interpreted a June 2005 statement from the Veteran's representative as a notice of disagreement (NOD) with the effective date assigned the award of a 100 percent evaluation in April 2005. A SOC was not issued until December 2008, but the Veteran properly initiated an appeal with respect to the effective date assigned the award of a 100 percent evaluation in the April 2005 rating decision, and this appeal stems from a claim that was received on November 5, 2004. The current effective date for the grant of a 100 percent rating for the Veteran's psychiatric disorder is November 5, 2004, the date his claim for an increased rating was received. The only basis on which an earlier effective date may be established is if it is factually ascertainable that the Veteran's dysthymic disorder with bipolar disorder increased to the severity contemplated by a 100 percent evaluation within one year prior to the date of claim, i.e. between November 5, 2003 and November 5, 2004. 38 C.F.R. § 3.400(o). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's disability is rated under 38 C.F.R. § 4.130, Diagnostic Code 9410 (pertaining to unspecified neurosis) and the general rating formula for rating mental disorders. Under the general rating formula, a maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A 100 percent rating is warranted if the service-connected psychiatric disorder causes total occupational and social impairment, regardless of whether the Veteran has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). After review of the evidence of record, the Board finds that the Veteran's dysthymic disorder with bipolar disorder first met the criteria for a 100 percent evaluation on February 18, 2004, the date of a mental health examination performed at the Augusta VA Medical Center (VAMC). At that time, the Veteran endorsed continued stressors with hallucinations and was found unemployable due to his disability. Although the February 2004 VAMC record does not address the level of social impairment resulting from the Veteran's psychiatric disorders, an October 2004 record from the same facility noted that the Veteran was unable to function independently due to occupational and social impairment manifested by his dysthymic and bipolar disorders. The Veteran was also found to endorse problems with interpersonal relations, judgment, and thinking. While the February 2004 treatment note does not contain as much detail as the later October 2004 record, the Board finds that it contains sufficient information regarding the severity of the service-connected disability to find that the criteria for a 100 percent rating are met as of February 18, 2004. Accordingly, it is factually ascertainable that the Veteran's dysthymic disorder with bipolar disorder increased to the severity contemplated by a 100 percent evaluation within one year prior to November 5, 2004, the date the claim for an increased rating was received. Based on the foregoing, an earlier effective date of February 18, 2004 is warranted for the award of a 100 percent rating for the Veteran's dysthymic disorder with bipolar disorder and to this extent, the claim is granted. 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, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in September 2005 and September 2007 letters. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an earlier effective date of February 18, 2004, but not earlier, for the award of a 100 percent rating for dysthymic disorder with bipolar disorder is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs