Citation Nr: 18149226 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-01 696A DATE: November 9, 2018 ORDER Entitlement to an effective date earlier than January 12, 2009, for the award of a 70 percent rating for bipolar disorder is denied. FINDING OF FACT 1. The Veteran’s current claim for an increased rating for bipolar disorder was received by VA on January 12, 2010; as it was factually ascertainable that the increase in her disability occurred within one year of that date, she was assigned an effective date of January 12, 2009, for the award of her increased 70 percent rating. 2. The Veteran has been assigned the earliest effective date possible for the award of 70 percent for her service-connected bipolar disorder. CONCLUSION OF LAW The criteria for an effective date earlier than January 12, 2009, for the assignment of a 70 percent rating for the Veteran’s bipolar disorder have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to October 1996 and August 1998 to May 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office. In a January 2015 substantive appeal, the Veteran requested a Board video conference hearing. However, in a September 2017 correspondence, the Veteran, through her representative, withdrew her request for the Board hearing. Accordingly, the Board finds the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704(e). Entitlement to an earlier effective date prior to January 12, 2009, for the award of a 70 percent rating for bipolar disorder As a preliminary matter, the Board finds that there is no dispute as to the facts essential to resolution of this appeal: Specifically, the Veteran does not contend that she filed a claim of entitlement to an increased rating for her service-connected bipolar disorder prior to January 12, 2010. Rather, the Veteran asserts that she is entitled to an effective date of January 2003, for the award of a 70 percent rating for her bipolar disorder since treatment records have noted her hospitalizations related to her bipolar disorder dating back to January 2003. As explained below, the Board finds that an effective date prior to January 12, 2009, for the award of a 70 percent rating for bipolar disorder, is not warranted. Historically, a February 1997 rating decision granted the Veteran’s claim for service connection for psychosis (now characterized as bipolar disorder), and assigned a 50 percent rating, effective October 30, 1996. Thereafter, an October 1997 rating decision proposed to reduce the 50 percent rating to 0 percent, which was then effectuated in a January 1998 rating decision, effective April 1, 1998. The January 1998 rating decision became final as the Veteran was notified of the decision and of her appellate rights but did not appeal. The Veteran’s claim for an increased rating for her bipolar disorder was received by VA on January 12, 2010. This was addressed in the June 2010 rating decision, currently on appeal, which granted the Veteran a 70 percent rating for her bipolar disorder, effective from January 12, 2009. As noted above, the Veteran asserts that an earlier effective date of January 2003 is warranted. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The Board preliminarily notes a review of the record reveals that there were no other pending, unadjudicated claims for a higher rating for bipolar disorder from the time frame after the finalized January 1998 rating decision until January 12, 2010. Thus, the Board has determined that January 12, 2010 is the date of receipt of the higher rating claim for bipolar disorder. Neither the evidence of record nor the Veteran has contended otherwise. However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). The Board notes that since the law only permits the Board to consider the evidence of record within the one-year period preceding the date of the claim, the Veteran has already been assigned the earliest effective date possible, one year prior to the date of her increased rating claim was received by VA, January 12, 2009. The Board acknowledges the Veteran’s assertions that her increase in disability stemmed as early as 2003. However, the pertinent legal authority governing effective dates is clear and specific in this regard and the Board is bound by such authority. In the absence of a pending formal or informal claim for increase that has been left unadjudicated by VA in a prior final decision, the Board is constrained by the laws and regulations governing the assignment of effective dates from awarding the Veteran an effective date earlier than January 12, 2009, for the assignment of a 70 percent rating for her service-connected bipolar disorder. In summary, under the facts of this case, there is no legal entitlement to an effective date earlier than January 12, 2009, for the assignment of a 70 percent disability evaluation for bipolar disorder. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel