Citation Nr: 1308610 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-29 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to December 6, 2005, for the grant of service connection for bipolar disorder. 2. Entitlement to an initial evaluation in excess of 30 percent for bipolar disorder. 3. Entitlement to an evaluation in excess of 10 percent for herpes simplex virus, type I (HSV-1). 4. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from February 1997 to December 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2004 and March 2009 rating decisions by the Roanoke, Virginia, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The June 2004 decision denied entitlement to an increased evaluation for HSV-1, while the March 2009 decision granted service connection for bipolar disorder and assigned a 30 percent evaluation effective from December 6, 2005. The Veteran testified at a December 2012 hearing held before the undersigned Veterans Law Judge at the Board's Washington, DC, offices. A transcript of the hearing is associated with the Veteran's electronic claims file, maintained as part of the Virtual VA system. The Board has reviewed all the records maintained in the Virtual VA system to insure review of the totality of the evidence. A claim for increased evaluation includes a claim for TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has repeatedly alleged that his service-connected disabilities impact his employability, inference of a TDIU claim is warranted. The issues of evaluation of bipolar disorder and HSV-1, as well as entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An initial claim of service connection for an acquired psychiatric disorder was received on November 7, 2002. 2. Service connection for bipolar disorder was denied in a September 2003 rating decision, which was reconsidered and affirmed in a June 2004 rating decision. 3. In July 2007, the Veteran submitted additional service department records in the form of a listing of appointments at the Walter Reed Army Medical Center and Bethesda Naval Hospital for 1998 and 1999. 4. These records were not previously associated with the claims file, and were relevant to the question of a nexus between service and current psychiatric disability. CONCLUSION OF LAW The criteria for an effective date of November 7, 2002, for the grant of service connection for bipolar disorder are met. 38 U.S.C.A. § 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). March 2006 and May 2006 letters satisfied the duty to notify provisions. 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 March 2006 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). While several VA examinations were afforded the Veteran, and such contain clinical findings necessary for the application of rating criteria, the issue decided here is independent of such findings. Current severity is not relevant to the effective date of service connection. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis On November 7, 2002, VA received an initial claim of service connection for "bipolar illness-manic depression." Although the Veteran had filed his original claim for compensation benefits in September 1999, he did not at that time mention any acquired psychiatric disorder. In a September 2003 rating decision, the RO denied entitlement to service connection for bipolar disorder, finding that service treatment records (STRs) were "completely silent" regarding treatment for the claimed condition. The decision was reconsidered and confirmed in a June 2004 rating decision following receipt of additional evidence, including some STRs and service personnel records (SPRs), which were also silent with regard to bipolar disorder. Although the Veteran initiated an appeal of these denials, he failed to perfect that appeal following the July 2005 issuance of a statement of the case (SOC). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. On December 6, 2005, correspondence was received from the Veteran requesting scheduling of an examination in connection with his claim of service connection for bipolar disorder. This was accepted by the RO as a reopened claim. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Reopening of the previously denied claim of service connection was denied in a May 2008 rating decision, which the Veteran appealed. In a May 2009 Decision Review Officer (DRO) decision, the claim was reopened and service connection was granted for bipolar disorder, effective from December 6, 2005, the date of receipt of the reopened claim. However, the evidence considered in the grant of service connection included a listing of treatment appointments at the Bethesda National Naval Medical Center and the clinic at Quantico in 1998 and 1999, while the Veteran was on active duty. These records, received in June 2007, reflected repeated treatment at the mental health clinic, and corroborated statements by the Veteran regarding his ongoing treatment with both mental health professionals and his primary care doctors. These records were generated by the service department's care providers, and as such must be considered service department records. The record of appointments was requested by the Veteran and generated by the service department care facilities to address the absence of contemporaneous mental health treatment records in the STRs. Mental health records are not part of STRs, and are not associated with the Veteran's file. They are maintained by the facility providing the care, and are destroyed after 5 years of inactivity. VA Adjudications Procedure Manual, M21-1MR, III.iii.2.A.1.a. Accordingly, the Veteran sought evidence corroborating his competent reports of ongoing treatment. The records were, however, fully discoverable by VA, as the STRs identified the facilities involved as well as the specific doctors for the period in question. Regulations provide that in a previously denied claim, when relevant service department records which existed at the time of the denial but had not been obtained are associated with the claims file, the denied claim must be reconsidered, not merely reopened. 38 C.F.R. § 3.156(c)(1). Further, any award based on such reconsideration is effective from the later of the date entitlement arose or the date of receipt of the previously denied claim. 38 C.F.R. § 3.156(c)(3). Accordingly, the issue was improperly framed as a request for reopening following the receipt of additional, previously unconsidered STRs. The issue should have been framed as one of straight service connection on the merits, to reflect that the initial denial was being reconsidered. Further, the effective date of service connection was assigned based on the date of receipt of the Veteran's December 2005 claim, in accordance with the provisions of 38 C.F.R. § 3.400(q) and (r). Those regulations provide that where a claim is granted following reopening based on submission of new and material evidence, the effective date of the award is the date of receipt of the reopened claim or the date entitlement arose, whichever is later. An exception to that effective date rule is made for awards based on submission of service department records. 38 C.F.R. § 3.400(q). In those cases, as here, 38 C.F.R. § 3.156(c)(3) directs that the effective date be assigned based on the circumstances of the previously denied claim which is now being reconsidered. The effective date is to be the later of the date of receipt of the reconsidered claim, or the date actual entitlement arose, whichever is later. As noted, the Veteran initially filed a claim of service connection for an acquired psychiatric disorder in November 2002; this was denied in September 2003 and June 2004. The receipt of the additional, relevant service department records requires reconsideration of that previously denied claim, with assignment of an effective date of service connection consistent with the circumstances surrounding the initial claim. The evidence of record demonstrates, as found in the Mach 2009 DRO decision granting service connection, that the Veteran's in-service mental health treatment reflected the initial onset of his current bipolar disorder. Although STRs report only complaints of depression, these complaints have been identified as manifestations of bipolar disorder by doctors. Accordingly, a disability related to service existed from the time of that service. Entitlement accordingly arose with separation from service. However, no claim for such was received until November 7, 2002. The Veteran's formal September 1999 claim for compensation benefits has been reviewed, along with all correspondence and evidence between then and November 2002, but there is no communication reflecting any intent to claim benefits based on a psychiatric disorder. 38 C.F.R. § 3.155. Although VA treatment records reflect complaints of depression as of March 2000, such records cannot serve as an initial claim for benefits in and of themselves. 38 C.F.R. § 3.157. Therefore, the date of receipt of the claim under reconsideration is the later of the two possible effective dates, and must be assigned. Accordingly, entitlement to an earlier effective date of November 7, 2002, for the grant of service connection for bipolar disorder is warranted. The Board notes that the Veteran has also raised an allegation of clear and unmistakable error (CUE) in the September 2003 rating decision which denied service connection for bipolar disorder. Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. 38 C.F.R. § 105(a). Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). A claim of CUE is a collateral attack on a final RO decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). However, here application of 38 C.F.R. § 3.156(c) has rendered the September 2003 decision non-final; the submission of additional relevant STRs required its reconsideration. There can be no valid CUE claim in the absence of a final decision. Accordingly, the Veteran's allegation is rendered moot, and there is no question on appeal for the Board to consider with respect to CUE. ORDER An earlier effective date of November 7, 2002, for service connection of bipolar disorder is granted. REMAND Remand is required with regard to the remaining issues, either for further development, or to respect due process requirements. Regarding the evaluation of bipolar disorder, the above decision granting an earlier effective date requires remand for assignment of an initial rating by the agency of original jurisdiction. Consideration of the severity of the Veteran's disability during the period prior to December 2005 is beyond the scope of the issue certified to the Board. Moreover, the evaluation assigned for that period may impact that currently assigned since December 2005. Conceivably, a higher or lower evaluation may be assigned, and the effective dates assigned for such must reflect factual entitlement; such dates may have no relation to the dates on which claims were received. The Board cannot therefore clearly define any time period as an evaluation stage, or definitively state what evaluation might be assigned for such stage. Accordingly, the question of current evaluation for bipolar disorder is inextricably intertwined with the need to assign a retroactive evaluation prior to December 2005. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered.) To ensure the most complete file possible for consideration in assignment of evaluations over the entirety of the appellate period, efforts must be made to secure complete private treatment records from Dr. B. Fisher; the psychiatrist has previously submitted periodic letters summarizing the Veteran's treatment. However, detailed treatment records will be of greater use in determining the appropriateness of staged evaluations. With respect to the rating assigned for HSV-1, remand for further examination is necessary. The Veterans herpes disability is reported to manifest as recurrent cold sores; no genital involvement has been noted. At the most recent VA skin disorders examination in July 2007, the VA examiner found no current manifestations of disability. The Veteran was not suffering a current outbreak, though he had reported weekly problems with fever blisters. Acne was noted and referred for treatment. The Veteran did report that he was on medication to prevent herpes outbreaks. However, treatment records from 2006 to 2008 from the Walter Reed Army Medical Center (WRAMC) indicate that the Veteran had no current herpes-related problems. Instead, urticaria, a separate and distinct condition, was diagnosed. Doctors indicated that this condition was responsible for the weekly outbreak of skin symptoms, not herpes. Records also indicated that the Veteran was no longer prescribed his prophylactic medication. It is unclear if complete records have been secured, and so on remand efforts must be undertaken to determine if additional treatment has been received at WRAMC. On remand, examination is required to clearly identify all current manifestations of herpes, to include discussion of the frequency and severity of any outbreaks, as well as symptomatic or preventive treatment. Symptoms of HSV-1 and any other peri-oral condition must be distinguished. Finally, consideration of entitlement to TDIU is dependent upon the impact of all service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the currently open claims for increased evaluations. Harris v. Derwinski, 1 Vet. App. 180 (1991). Moreover, updated clinical findings, with specific discussion of the impact of service-connected disabilities on employability, are needed. To that end, on remand examination is necessary. On remand, the Veteran should also be provided with notice concerning how to substantiate a claim for TDIU and asked to complete a TDIU claim form. Further, the Veteran indicates he has received Vocational Rehabilitation services from VA; statements from several care providers reveal that they saw him in connection with such. A complete Vocational Rehabilitation file is not associated with the claims file, however; as any interviews as assessments may contain information relevant to evaluation of the Veteran's service connected disabilities and his entitlement to TDIU, such should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for Dr. B. Fisher. In addition, the Veteran should be asked to identify any other outstanding records, including any additional records from the Walter Reed Army Medical Center, as well as any other private care provider, for the period of November 2001 to the present. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Provide notice to the Veteran concerning how to substantiate a claim for TDIU pursuant to 38 C.F.R. § 3.159 (2012). Also, request that the Veteran complete a TDIU claim form. 3. Associate with the claims file a copy of the Veteran's VA Vocational Rehabilitation file, to include copies of reports and treatment records from Dr. L. Moldauer, a private consultant. If an additional VA Form 21-4142 for records of Dr. Moldauer not held by VA is required, appropriate steps to obtain such must be undertaken. 4. Obtain complete VA treatment records dating from February 2009. 5. Take appropriate action to implement the above grant of an earlier effective date of service connection for bipolar disorder, to include assignment of initial disability evaluation(s) from November 7, 2002, forward. 6. Schedule the Veteran for a VA skin disorders examination. The claims file must be reviewed by the examiner in conjunction with the examination. The examiner must clearly identify all current manifestations of the herpes simplex virus, type I, to include discussion of symptomatic or prophylactic treatment, and must report on the frequency and severity of herpes outbreaks. If any other peri-oral condition, such as urticaria, is noted, the examiner must distinguish the manifestations of herpes to the greatest extent possible. The examiner must comment on the impact of herpes on the Veteran's occupational functioning. 7. Schedule the Veteran for a VA mental disorders examination. The examiner must fully describe the current manifestations of service-connected bipolar disorder, to include discussion of the impact of such on the Veteran's occupational functioning (the ability to obtain or retain substantially gainful employment). 8. Schedule the Veteran for the appropriate examination to assess whether the Veteran is unable to obtain or retain substantially gainful employment. The examiner should address whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran is unable to obtain or retain substantially gainful employment as a result of his service-connected disabilities: migraine headaches, bipolar disorder, sinusitis, irritable bowel syndrome, herpes simplex virus type I, and residuals of a fractured nose with deviated septum. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 9. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal, to include consideration of entitlement to TDIU. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs