Citation Nr: 1308627 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-33 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than August 26, 2009, for the grant of service connection for bipolar disorder. WITNESSES AT HEARING ON APPEAL Appellant and her mother ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 2001 to June 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. That decision reopened and granted service connection for a psychiatric disorder now classified as bipolar disorder. A videoconference hearing was held in November 2007 before the undersigned Veterans Law Judge, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The following determinations are based on review of the Veteran's claims file in addition to her Virtual VA "eFolder." FINDINGS OF FACT 1. An unappealed November 2002 rating decision denied service connection for an acquired psychiatric disorder, and it became final. 2. After the November 2002 rating decision, the first communication from the Veteran evidencing an intent to reopen a claim of service connection for an acquired psychiatric disorder was received on August 26, 2009. CONCLUSIONS OF LAW 1. The November 2002 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 C.F.R. § 7105(c); 38 C.F.R. § 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2012). 2.An effective date prior to August 26, 2009, is not warranted for the award of service connection for bipolar disorder. 38 U.S.C.A. §§ 5101, 5100, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As to the issue of entitlement to an effective date earlier than August 26, 2009, for service connection for bipolar disorder, the Veteran's claim for an earlier effective date arises from the initial grant of service connection for that disability. Preadjudicatory VCAA notice provided in September 2009 also advised the Veteran of what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Moreover, the claimant was provided with additional VCAA letter in April 2010 regarding her claim for an earlier effective date. And finally the Board further notes that adjudication of a claim for an earlier effective date from a grant of service connection is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the veteran. See generally 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.160, 3.400 (2012). Consequently, there is no additional development that can be conducted, examination performed, nor any other records which can be obtained, which would substantiate her claim. As regards the hearing testimony, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, supra. Here, the undersigned Veterans Law Judge solicited the appellant to set forth her contentions relevant to the claim for an earlier effective date for the grant of service connection for bipolar disorder. No additional evidence was identified during the hearing. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Earlier Effective Date - Legal Criteria With regard to the effective date issue on appeal, the Board notes that it has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d at 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. at 128-30 (2000). In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed. 38 C.F.R. § 3.151(a) (2012). A "claim" or "application" is defined by VA regulation as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p) (2012). An informal claim is "[a]ny communication or action, indicating an intent to apply for one or more benefits . . . ." 38 C.F.R. § 3.155(a) (2012). 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. Id. The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2011). See 38 C.F.R. § 3.400 (2012) (to the same effect). An exception to that rule applies if an application for benefits is received within one year from the date of a veteran's discharge or release from active service, and an award is made on the basis of that application. In that situation, the effective date of the award is made retroactive to "the day following the date of discharge or release . . . ." 38 U.S.C.A. § 5110(b)(1) (West 2002 & Supp. 2011). See 38 C.F.R. § 3.400(b)(2) (2012) (to the same effect); Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). If a veteran files an application for service connection with VA, and the claim is disallowed, he has the right to appeal the disallowance to the Board. See, e.g., 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2012). If he does not initiate an appeal within one year, however, the decision becomes final. See 38 C.F.R. §§ 20.302(a), 20.1103 (2012). With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 U.S.C.A. §§ 5108, 5110(a) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.400(q)(1)(ii) (2012). The Court has held that a "presumption of regularity" attaches to the official acts of public officers. See, e.g., Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), aff'd sub no. Marciniak v. West, 168 F.3d 1322 (Fed. Cir. 1998). That is to say, there is a presumption, rebuttable only by "clear evidence to the contrary," that public officers have properly discharged their official duties. Id. This includes the RO's mailing of its decisions. In the absence of clear evidence to the contrary, a statement by the veteran that the document was not received, standing alone, is not sufficient to rebut the presumption of regularity. YT v. Brown, 9 Vet. App. 195, 199 (1996); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62 (1992). Background and Analysis RO on July 15, 2002, VA received a VA FORM 21-526 (Veteran's Application for Compensation and/or Pension). At that time, the Veteran filed for service connection for several claims, to include depression. She specifically noted (handwritten) in an "explanation" section that her disability was related to the military due to depression and stress that she had on active duty. A review of the record reflects that the November 2002 rating decision which denied the claim and a notice letter as to the denial were mailed to the Veteran at her address then of record as reflected in her VA FORM 21-526. Notably, at the video conference hearing, the Veteran and her mother testified in support of her claim. The claimant said that she was not aware that a claim for a psychiatric disorder was filed on her behalf in 2002. She acknowledged that the rating decision and notice were sent to her address of record (where her mother also resided), but she pointed out that she was in a dorm and that the residence where the mail was received had flooded resulting in the mail being forwarded to another address in the same complex. He mother corroborated these facts, specifically recalling that the mail was indeed forwarded to the apartment where she was moved, but she also did not specifically recall seeing the correspondence regarding the Veteran's 2002 claim. The Veteran said that she did know about the earlier claim until 2009. She added that she was in and out of the hospital and signing all kinds of documents at the time and was psychiatrically ill. She did not recall all of the paperwork that she signed. In effect, she argued that she should not be held accountable for the documents of record that she signed in 2002. The November 2002 rating decision and notification letter were not returned by the post office as undeliverable, and the Veteran is presumed to have received such. Woods v. Gober, 14 Vet. App. 214, 220 (2000) ("There is a presumption of regularity that the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision was issued."); see also Butler v. Principi, 244 F.3d 1337, 1339 (Fed. Cir. 2001) (presumption of regularity applied to mailing of copy of notice of appellate rights so that where veteran did not timely file NOD from administrative decision such decision was proper basis for denial of veteran's claim). In this case, the Veteran has asserted that she does not recall filing a claim for benefits in 2002, but review of pertinent documents at the time does show that she filled them out by hand and provided specifics regarding her claim for service connection for depression. This suggests that she was at least aware that a claim was filed in 2002 although she might not recall it now. Moreover, while she is competent to assert that she does not recall receiving notification of the denial of her claim in 2002, she must rebut the presumption of regularity by submitting "clear evidence to the effect that [VA's] regular mailing practices are not regular or that they were not followed". Woods, supra. She has made no attempt at such a showing here, relying instead on statements that she was in a dorm, that there was a lot going on at the time to include the mail being forwarded, and that she suffered from psychiatric symptoms. Nevertheless, a statement that the mailing in question was not received is insufficient to rebut the presumption of regularity, and thus the bald assertion does not establish that the notice requirements associated with the November 2002 notification have not been met. See YT, supra. Because the record clearly shows that a timely notice of disagreement (NOD) was not filed as to the November 2002 rating decision, that decision is final based on the evidence of record at the time of issuance and is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A, 7105 (West 2002 & Supp. 2011); see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). CUE is not alleged or suggested in this case. At the video conference hearing it was explained to the Veteran (and it appears that she understood) that because there was a presumption of regularity in regards to delivery of mail and a prior rating decision (final) in the matter (Hearing tr. at pgs. 8, 11), the November 2002 final rating decision is a legal bar to an effective date prior to that decision. While the Veteran has expressed disagreement with the prior final determination, there is no legal authority for the Board to set aside the finality of that decision in the absence of an allegation (and showing) of CUE in that decision. What remains for consideration before the Board is whether following the November 2002 rating decision, and prior to August 26, 2009, there was any communication from the Veteran expressing an intent to reopen her claim and seek service connection for a psychiatric disorder. A close review of the record reflects that there was not; the earliest recorded expression of intent by the Veteran to seek service connection for an acquired psychiatric disorder is the VA Form 119 dated August 26, 2009, which reflected treatment for psychiatric disorders and serves as the Veteran's claim to reopen the issue on appeal. Under governing law, generally (with exceptions none of which are here applicable) the effective date of an award based on a reopened claim following a prior final denial of the claim cannot be earlier than the date of receipt of the claim to reopen. There is not statutory authority that would allow VA to grant the Veteran an effective date earlier than August 26, 2009, for the award of service connection for bipolar disorder under the circumstances of this case, or for the reasons she has alleged. Accordingly, as a matter of law, the appeal seeking an effective date prior to August 26, 2009, for the grant of service connection for bipolar disorder must be denied. Sabonis v. Brown, 6 Vet. App. 426) (1994). ORDER Entitlement to an effective date earlier than August 26, 2009, for the grant of service connection for bipolar disorder, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs