Citation Nr: 18142965 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-33 135 DATE: October 18, 2018 ORDER Entitlement to an effective date earlier than February 16, 2015, for the grant of a rating of 70 percent for bipolar disorder is denied. FINDING OF FACT The Veteran filed a claim for increased compensation for bipolar disorder that was received by VA on February 16, 2015; he was subsequently granted a 70 percent rating, effective on that date. There is no probative evidence to suggest that the criteria for a 70 percent rating were met in the year prior to VA’s receipt of that claim, nor is there any probative evidence that the Veteran submitted any communications prior to that date requesting increased compensation for bipolar disorder. CONCLUSION OF LAW The criteria for an effective date earlier than February 16, 2015 for the award of an increased 70 percent rating for bipolar disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1986. This appeal arose to the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran seeks entitlement to an effective date earlier than February 16, 2015, for the grant of an increased 70 percent rating for bipolar disorder. As noted above, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. More specifically, according to Harper v. Brown, 10 Vet. App. 125, 126 (1997), in the case of claims for earlier effective dates for awards of increased compensation, three possible effective dates may be assigned: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (the date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (38 C.F.R. § 3.400(o)(2)). In summary, determining the appropriate effective date for an increased rating under the effective date statues and regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. § 3.155, 3.400(o)(2). Here, the RO granted service connection for the Veteran’s bipolar disorder in a March 1987 rating decision, assigning an initial 10 percent rating. The Veteran was notified of this decision; however, the Veteran did not appeal the decision or submit new and material evidence with respect to his bipolar disorder within one year of the decision. Hence, the March 1987 rating decision became final within one year. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran then filed a claim for an increase in his rating in May 1991. The RO responded with an October 1991 rating decision, continuing the Veteran’s disability at a rating of 10 percent. The Veteran was notified of this decision; however, the Veteran did not appeal the decision or submit new and material evidence with respect to his bi-polar disorder within one year of the decision. Hence, the October 1991 rating decision became final within one year. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran then filed a claim for an increased compensation for his bipolar disability, which was received on February 16, 2015. An increased rating of 70 percent was subsequently awarded, effective on that date. The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to his current effective date that could be construed as a claim for increased compensation for PTSD. See 38 C.F.R. § 3.1(p) (2014). The Board finds that there are no communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). As noted above, while the Veteran had submitted an earlier claim for service connection which was granted in March 1987, and filed a subsequent for an increased rating in 1991, he did not appeal the initial 10 percent rating for bipolar disorder within a year of March 1987 and October 1991 rating decisions. The Board has also considered the earliest date in which it is factually ascertainable that an increase in the Veteran’s bipolar disorder occurred, in particular within one year from the February 2015 claim for increase. However, on review, there is simply no probative evidence demonstrating that the criteria for a 70 percent rating were met prior to the date of claim. See 38 C.F.R. § 4.130, General Ratings Formula for Mental Disorders. Indeed, the evidence of record does not include any pertinent medical evidence dated one year prior to the Veteran’s February 2015 claim. In so finding, the Board has considered the provisions of 38 C.F.R. § 3.157(b) regarding the function of certain medical records serving as informal claims for increase. In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his bipolar prior to February 2015 that could be construed as an informal claim for increased compensation, nor is it factually ascertainable that an increase in disability occurred during the one-year period prior to the February 2015 date of claim. See 38 C.F.R. §§ 3.1(p), 3.157(b). Thus, there is no legal basis for awarding an effective date earlier than February 16, 2015. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs