Citation Nr: 1510791	
Decision Date: 03/13/15    Archive Date: 03/24/15

DOCKET NO.  02-15 238A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

1.  Entitlement to compensation for hepatitis C to include under 38 USCA § 1151 due to surgery performed by VA in December 1978.

2.  Entitlement to an initial rating in excess of 30 percent for bipolar disorder, to include whether entitlement to an effective date prior to January 23, 2001, is warranted.

3.  Entitlement to an initial compensable rating for hepatitis C, to include whether entitlement to an effective date prior to January 23, 2001, is warranted.  


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney at Law




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from May 1974 to December 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The Veteran testified at a Travel Board hearing before the Board in June 2013.  The Board remanded the Veteran's claim for additional development in November 2013.  

The Veteran also appealed the issue of entitlement to service connection for bipolar disorder and hepatitis C and these issues were remanded by the Board in November 2013.  An April 2014 rating decision issued by the Appeals Management Center (AMC) granted service connection for bipolar disorder and hepatitis C.  Therefore, those issues are not before the Board.  Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

The issues of entitlement to an increased rating for a left knee disability and entitlement to service connection for headaches, hypertension, a back disability, a bilateral leg disability, sleep apnea, a bilateral hip disability, a right knee disability, a bilateral ankle disability, a bilateral toe disability, a bilateral foot disability and a stroke being referred have been raised by the record in a May 2014 statement for the increased rating claim and in an October 2014 statement for the service connection issues, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The issues of entitlement to increased initial ratings for bipolar disorder and hepatitis C being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

The April 2014 rating decision which granted service connection for hepatitis C is a complete grant of the benefits sought on appeal.


CONCLUSION OF LAW

There are no remaining questions of fact or law to be decided on the issue of entitlement to compensation for hepatitis C under 38 U.S.C.A. § 1151.  38 U.S.C.A. § 7104 (West 2014). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify and Assist

VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken.  However, given that entitlement to compensation for hepatitis C to include under 38 USCA § 1151 is dismissed as moot on a legal basis, further development under the VCAA or other law could not result in a favorable outcome or be of assistance to this inquiry. 

The Court of Appeals for Veterans Claims has held that, in a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The Court has also held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter.  See Manning v. Principi, 16 Vet. App. 534 (2002).

II.  Compensation under 38 U.S.C.A. § 1151

The Veteran was seeking compensation for hepatitis C both as a service-connected disability and pursuant to pursuant to 38 U.S.C.A. § 1151.  Compensation pursuant to 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service-connected.  38 U.S.C.A. § 1151. 

As noted in the introduction, service connection has been granted for hepatitis C in an April 2014 rating decision.  Because service connection has been established, this is a complete grant of the benefit sought on appeal in this decision.  Furthermore, the date of receipt of the application which initiated the service connection claim is concurrent with the date in which the Veteran initiated the claim for § 1151 benefits.  Thus the grant of service connection for hepatitis C is a greater benefit than that sought by the 38 U.S.C.A. § 1151 claim, so there no longer remains any controversy or justiciable claim as regards the matter of the entitlement to compensation under 38 U.S.C.A. § 1151 for compensation for hepatitis C currently before the Board.  As service connection for hepatitis C has been granted, the matter of the entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis C "as if" service-connected must be dismissed.  See 38 U.S.C.A. § 7104 (West 2014).


ORDER

The claim for hepatitis C to include under 38 U.S.C.A. § 1151 due to surgery performed by VA in December 1978, having been rendered moot, is dismissed.  




REMAND

In October 2014, the Veteran expressed disagreement with the ratings and effective dates assigned for bipolar disorder and hepatitis C.  However, the RO/AMC did not issue a statement of the case with regard to those issues.

Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the matter for issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case for the issues of entitlement to an initial rating in excess of 30 percent for bipolar disorder and entitlement to an initial compensable rating for hepatitis C, to include whether effective dates prior to January 23, 2001, are warranted, in accordance with applicable law and regulations.  The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning these issues.  If a timely substantive appeal is not filed, the claims should not be certified to the Board.  If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate.   

The appellant has the right to submit additional evidence and argument on the matter or 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 2014).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs