Citation Nr: 1340982 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-18 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating (evaluation) for bipolar disorder in excess of 50 percent for the period from July 30, 2003 to May 21, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1970 to April 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for bipolar disorder (effective date of July 30, 2003) and initially evaluated the disability as 50 percent disabling. In August 2007, the Veteran disagreed with the initial 50 percent disability rating. A statement of the case addressing the issue of initial rating for bipolar disorder was issued in January 2008. The Veteran submitted a substantive appeal (VA Form 9) in February 2008. After further development, in a June 2009 readjudication during the initial rating appeal, the RO granted a staged disability evaluation of 100 percent for bipolar disorder effective May 21, 2009. In an October 2009 written statement, the Veteran contended that the 100 percent stage of the initial disability evaluation should have been for an earlier period of initial rating prior to May 21, 2009. The Veteran used the term "effective date" to refer to the earlier initial rating period for which a 50 percent rating had been assigned. In March 2010, the RO issued a supplemental statement of the case continuing denial of a rating in excess of 50 percent for the initial rating period prior to May 21, 2009 (although the RO styled the issue as "entitlement to an earlier effective date" rather than initial rating for the earlier period). The Veteran has continued to request that the "effective date" for the 100 percent disability evaluation be an earlier date than determined by the RO, indicating that he feels that his bipolar disorder had become worse long before the May 2009 VA examination (the date from which the RO assigned the 100 percent evaluation). Indeed, the Veteran has continued to refer to his contention as one seeking an "earlier effective date" and even submitted what purported to be a substantive appeal for the issue (April 2010). Because the initial rating appeal had already been perfected in February 2008 for the early stage of initial rating period (prior to assignment of the 100 percent stage of the initial rating), which encompasses the question of whether a higher rating from 50 percent up to 100 percent should be assigned for the early stage of the rating, the Veteran's characterization of the issue as one for earlier effective date did not constitute an actual effective date appeal. Likewise, although the Veteran used the term "effective date" to express his disagreement with the date of assignment of the 100 percent stage of the initial rating appeal, his characterization of the issue as one for earlier effective date did not constitute an effective date appeal. He did not express disagreement with the only effective date assigned, the effective date for the grant of service connection, July 30, 2003; instead, he only disagreed with the early stage of the initial rating period for which the 100 percent rating was not assigned. The only potential effective date that could have been appealed is the effective date for the grant of service connection for bipolar disorder of July 30, 2003 that was assigned by the RO; however, the Veteran did not express disagreement with the July 30, 2003 effective date assigned by the RO in the March 2007 rating decision, so did not appeal the only appealable effective date. The Veteran only expressed disagreement with the 50 percent stage of the initial period, which commences on July 30, 2003 and now runs to May 21, 2009. In essence, the Veteran has contended that the initial rating for his bipolar disorder should be a 100 percent disability evaluation; thus, the only initial rating period remaining on appeal is the period for which a 50 percent rating is assigned, from July 30, 2003 to May 21, 2009. Furthermore, because all the "questions" that would pertain to an earlier effective date issue (when entitlement to 100 percent arose) are being decided by the perfected initial rating appeal - namely a weighing of the lay and medical evidence to determine when the evidence shows that entitlement to a 100 percent rating arose, that is, when the 100 percent "staged rating" should begin - there remains no "question" of effective date for rating that is not fully adjudicated in an initial rating appeal adjudication of the 50 percent rating stage. For these reasons, it was not legally possible for the Veteran to appeal an "effective date" for the 100 percent rating; the Veteran's disagreement with the 50 percent rating assigned for the early stage within one year of the initial rating assignment constituted a notice of disagreement and appeal of that stage of the initial rating. See 38 U.S.C.A. § 7104 (West 200) (stating the Board is to decide questions of law or fact). Likewise, following the Veteran's statement, the RO's labeling of the subsequent adjudications to include the phrase "earlier effective date" has not raised or adjudicated an actual effective date issue, as an earlier effective date for assignment of the 100 percent rating is a legal impossibility in such a staged rating case as this where the Veteran has already perfected an appeal of the 50 initial disability rating for the entire initial rating period back to the date of grant of service connection (which was not appealed and became final). The issue remaining on appeal, as originally perfected in February 2008, is entitlement to a higher initial disability rating for bipolar disorder in excess of 50 percent for the early stage of the initial rating period from July 30, 2003 (effective date of the grant of service connection for bipolar disorder) to May 21, 2009 (when the 100 percent stage of rating beings). For these reasons, the Board will conduct its analysis of the remaining aspect of the initial rating appeal, specifically, entitlement to a higher initial disability rating (evaluation) in excess of 50 percent for bipolar disorder for the period from July 30, 2003 prior to May 21, 2009. While the RO later styled the appeal as one for earlier effective date, the Veteran is not prejudiced by this because the issue to which the Veteran first disagreed in August 2007, was given notice, and perfected an appeal was the initial rating appeal (disagreement expressed regarding the early stage 50 percent initial disability rating) rather than an actual effective date issue; therefore, there was in fact no effective date "question" before the Board that was not addressed by the RO on the initial rating analysis. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In addition, there can be no prejudice to the Veteran regarding the later styling of the issue as one for earlier effective date for rating because the substance of the statement of the case and supplemental statement of the case adjudications were essentially a rating analysis for the early initial rating period; the same evidence would be weighed and considered in the same manner to resolve either the question of when the evidence showed that a 100 percent initial rating was warranted (when the 100 percent stage should begin) or the question of when entitlement arose to a 100 percent rating; and the result would have been the same (100 percent rating beginning on May 21, 2009) under either an initial rating or effective date analysis, even though no effective date appeal was actually initiated, for the reasons explained above. In a February 2008 substantive appeal (VA Form 9), the Veteran requested a Board hearing to be held in Muskogee, Oklahoma (Travel Board hearing) or by videoconference. In a written statement received April 2010, the Veteran subsequently withdrew the hearing request. The hearing request is withdrawn. 38 C.F.R. § 20.704 (2013). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2013). It appears that the Veteran may have been awarded disability benefits by the Social Security Administration (SSA), and there is no indication that the RO has attempted to obtain the complete SSA file. A February 2008 VA treatment record indicates that the Veteran reported filing for SSA disability benefits. As the Board cannot determine the basis for the award from the current evidence of record, it cannot rule out a reasonable possibility that the SSA records are relevant to the Veteran's current appeal. Accordingly, a remand is necessary to obtain the records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that has a duty to obtain SSA records where a reasonable possibility exists that the records are relevant to the Veteran's claim); 38 C.F.R. § 3.159(c)(2) (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain from the SSA a copy of its decision(s) awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). _________________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).