Citation Nr: 1330412 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-11 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than March 31, 2005 for the grant of service connection for bipolar disorder with psychotic features of depression (claimed as depression). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1978 to August 1983. This matter is on appeal from the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a March 2010 substantive appeal, via a VA Form 9, and requested a video conference hearing before the Board. A hearing was scheduled for September 2011, but the Veteran did not appear and did not provide any explanation for her absence. Accordingly, her request for a hearing is considered withdrawn, and the Board may proceed with review of the claim. 38 C.F.R. § 20.704(d) (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran's claim for entitlement to service connection for depression was received on March 31, 2005, which was not within one year after separation from service. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than March 31, 2005 for the grant of service connection for bipolar disorder with psychotic features of depression have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155(a), 3.400(b)(2)(i) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that she is entitled to an effective date earlier than March 31, 2005 for the grant of service connection for bipolar disorder with psychotic features because there is documented treatment for this disability beginning in June 1984, which is within one year of separation from service. With regard to an appeal for disability compensation based on direct service connection, the effective date will be the date following separation from active service or date entitlement arose if claim was received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2013). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a)(1) (West Supp. 2013); 38 C.F.R. § 3.151(a) (2013). A "claim" is 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) (2013). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a) (2013). 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. 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. Id. In this case, the Veteran was separated from service in August 1983, as shown on her DD Form 214. On October 17, 1989, the RO received her Application for Compensation and/or Benefits, via a VA Form 21-526. Specifically, she requested, in pertinent part, service connection for nightmares. In a March 1990 rating decision, the RO denied service connection for an acquired neuropsychiatric disorder. With respect to the current claim on appeal, on March 31, 2005, the RO received the Veteran's Statement in Support of Claim, via a VA Form 21-4138, for which she requested service connection for depression. The Board notes that neither the October 1989 formal claim nor the March 2005 informal claim were received within one year after separation from service in August 1983. Therefore, the Board considers whether the later of date of receipt of claim or date entitlement arose is the proper effective date for the grant of service connection for bipolar disorder with psychotic features of depression. As noted above, the date of receipt of the Veteran's claim for entitlement to service connection for depression is on March 31, 2005. A review of the record indicates that at the earliest, service treatment records show the Veteran's in-service psychiatric hospitalization from June 9, 1983 to July 8, 1983. In June 1983, she received a provisional diagnosis of depression, situational with suicidal ideation, and assessed with a depressive reaction. In July 1983, her final diagnoses were depressive reaction and passive aggressive and immature personality disorder. Subsequently, private treatment records dated November 1994 reveal a diagnosis and treatment for major depression. As such, the record reflects that the earliest the date "entitlement arose" can be established from the evidence of record is June 9, 1983. Since the date of receipt for the claim is March 31, 2005, which is later than the earliest date that can be construed as the date entitlement arose in June 1983, the Board finds the currently assigned effective date of March 31, 2005 is properly assigned for the grant of service connection for bipolar disorder with psychotic features of depression. See 38 C.F.R. § 3.400(b)(2)(i). Pursuant to the Veteran's contentions, the Board also considers whether an informal claim was received or should have been inferred prior to the date of receipt of the informal claim on March 31, 2005. Although the medical evidence of record, discussed above, shows that the earliest dates of psychiatric treatment was in June 1983 and November 1994, such evidence does not constitute an informal claim for service connection benefits because such notations do not reflect any intent expressed to VA from the Veteran to claim compensation benefits for her depression. See 38 C.F.R. § 3.155. It is important for the Veteran to understand that the fact that the Veteran was treated for depression (or any other disability) in these circumstances does not put VA on notice that she is filing a claim with the VA for service connection and compensation. There are some minimal actions the Veteran herself must take to start VA compensation for a disability related to service. One of the most basic of actions is to file a claim with the VA to put VA on notice her belief that this disability is related to service. Moreover, no communication from the Veteran reflecting an intent to apply for service connection for depression was submitted to VA prior to March 31, 2005. Id. The Veteran was also still enlisted in active duty at the time of the earliest date in June 1983 listed above. See 38 U.S.C.A. § 101(2) (West 2002) (The term "veteran" means a person who served in active service and who was discharged or released therefrom under conditions other than dishonorable.). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet, App. 352, 356-57 (1995). Thus, the Board finds an informal claim of service connection for depression prior to March 31, 2005 may not have been inferred based on the above. Based on these findings, and applying the regulation that provides the proper effective date for disability compensation based on direct service connection, the Board finds the effective date of March 31, 2005 for service connection for bipolar disorder with psychotic features of depression is correct, and an earlier effective date is precluded by law and regulation. See 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.401(b)(2)(i). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. As discussed below, the resolution of the Veteran's appeal for an earlier effective date turns on the law as applied to the undisputed facts in this claim regarding the date of receipt of claim and date entitlement arose. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law is dispositive, the claim must be denied due to a lack of legal merit). ORDER An effective date earlier than March 31, 2005 for the grant of service connection for bipolar disorder with psychotic features of depression is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs