Citation Nr: 18140817 Decision Date: 10/09/18 Archive Date: 10/05/18 DOCKET NO. 10-02 327 DATE: REMANDED Entitlement to an effective date earlier than September 23, 2009, for the grant of service connection for an acquired psychiatric disorder, to include posttraumtic stress disorder (PTSD) and bipolar disorder, is remanded. REASONS FOR REMAND The Veteran had active military service in the Navy from December 1987 to December 1991. This included service in the Southwest Asia theater of operations, for which the Veteran received the Southwest Asia Service Medal with Bronze Star. This appeal comes to the Board of Veterans’ Appeals (Board) from May 2009 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. By way of history, the Veteran initially submitted his claim of entitlement to service connection for PTSD in May 2003 (VA received the claim on May 5, 2003). The claim was denied by the RO in a September 2003 rating decision because “[the Veteran] did not provide any information concerning [his] alleged in-service stressor and there [was] no medical evidence to show that [he had] been diagnosed with the disability.” In November 2003, the RO submitted a VA Form 21-3101 Request for Information, requesting active duty dates in Southwest Asia (SWA) on or after August 2, 1990. The response received was “Veterans [sic] records indicate[] he received the SWA service medal[,] however we are unable to determine the dates of service[.] Please see enclosed documents.” The next correspondence received from the Veteran was a VA Form 21-4138 request to reopen his claim for PTSD, received by the VA on September 23, 2008. Ultimately, after several years of proceedings on the matter, to include proceedings before the United States Court of Appeals for Veterans Claims (the Court), the Board allowed the petition to reopen the previously denied claim of entitlement to service connection for PTSD and also granted service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. See December 2014 Board Decision. In February 2015, the RO effectuated the Board’s grant of service connection by assigning a 70 percent rating effective September 23, 2008, the date of the claim to reopen the Veteran’s previously disallowed service connection claim. The RO also granted TDIU effective October 30, 2008. In June 2016, the Veteran’s representative filed a notice of disagreement (NOD) with the February 2015 rating decision regarding the effective dates assigned for the grant of service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, and the grant of a TDIU. In July 2016, the RO issued a statement of the case (SOC) for these issues. Subsequently, the Veteran’s representative filed a VA Form 9, substantive appeal regarding the effective date issues for PTSD and TDIU. In May 2017, the Board, in pertinent part, denied entitlement to an effective date earlier than September 23, 2008, for the grant of service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, and denied entitlement to an effective date earlier than October 30, 2008, for a TDIU. The Veteran appealed the Board’s decision to the Court. In a June 2018 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the part of the Board’s May 2017 decision that denied the earlier effective date issue for an acquired psychiatric disorder, to include PTSD and bipolar disorder, for action consistent with the terms therein. Therefore, entitlement to an earlier effective date for an acquired psychiatric disorder is the only issue before the Board, and the Board will not address any arguments regarding TDIU issues. See August 2018 Third Party Correspondence. Entitlement to an effective date earlier than September 23, 2009, for the grant of service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder is remanded. In its June 2018 JMPR, the Court found that the Board provided an inadequate statement of reasons or bases in support of its determination that 38 C.F.R. § 3.156(b) did not vitiate the finality of the September 2003 rating decision. Under 38 C.F.R. § 3.156(b), if new and material evidence is received within one year of issuance of a decision, or within the appeal period, the evidence is to be considered in conjunction with the claim that gave rise to the decision. The Court held that to the extent that the Board found that no non-cumulative evidenced was received by the RO in November 2003, it offered no support of this determination. To the extent that the Board found that the documents received in November 2003 did not contain stressor information or were otherwise immaterial, the Board cited no evidence in support of its determination. The Court held that it was unclear how the Board reached the conclusion that the documents were immaterial without any identification or discussion of contents of the documents, and that this failure on the part of the Board was grounds for a remand. The Board finds that a remand is warranted for the RO to identify or obtain the documents that were referenced in the November 2003 VA Form 21-3101 Request for Information as “enclosed documents.” See 38 U.S.C. § 5103A (2012). The identity and nature of the records referred to in the November 2003 response to the information request is not clear from the record. The Request indicated that records were enclosed with the response, but nothing is attached in the record. Therefore, the RO should identify or obtain these records on remand. The matter is REMANDED for the following action: 1. Please obtain or specifically identify the documents referenced as having been enclosed with the November 2003 VA Form 21-3101 Request for Information response. If the referenced documents are not available, the reasons therefore should be associated with the record. 2. If additional records are added to the record and the benefit on appeal remains denied, please issue a supplemental statement of the case to the Veteran and his representative, and return to the Board for further adjudication. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel