Citation Nr: 18149244 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 06-15 679 DATE: November 9, 2018 ORDER Entitlement to an effective date of August 13, 1991, for the grant of entitlement to service connection for bipolar disorder is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to May 19, 2004, for the grant of special monthly compensation (SMC) based on the need for aid and attendance of another is remanded. FINDING OF FACT The earliest date of entitlement for the Veteran’s claim for service connection for bipolar disorder is August 13, 1991, the day after he left active service. CONCLUSION OF LAW The criteria for an effective date of August 13, 1991, but no earlier, for the award of service connection for bipolar disorder have been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1977 to August 1991. A hearing was not requested. In February 2017, the Board granted the Veteran an effective date of May 19, 2004 for his claim. In July 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand on the basis that the February 2017 Board decision failed to consider evidence of in-service treatment for depression that was not made of record until April 2010. Earlier Effective Date Generally, when there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(r), 3.400(q)(2). An exception to this rule applies when the RO receives or associates with the claims file relevant official service department records that existed but had not been associated with the claims file when RO first decided the claim. See 38 C.F.R. § 3.156(c)(1). Under such circumstances, an award based “all or in part” on newly-obtained service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by statute. 38 C.F.R. § 3.156(c)(3). “In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted.” Vigil v. Peake, 22 Vet. App. 63, 66–67 (2008). 1. Entitlement to an effective date of August 13, 1991, for the grant of entitlement to service connection for bipolar disorder The Veteran is entitled to an effective date of August 13, 1991, the day after he left active service, because relevant service treatment records were missing when his original claim was decided. The Veteran left active service on August 12, 1991. On November 8, 1991, a date that is within one year of when the Veteran left active service, the Veteran filed a claim of entitlement to service connection for a nervous condition. A January 1992 VA examiner noted an onset of depression in 1989 during service with no recurrences and that the Veteran “showed no obvious evidence of mood disturbance” during the examination. But the examiner also stated that a “summary from the Camp Pendleton Hospital November 1989” was “not included in the [V]eteran’s service records” at the time of the examination. A June 1992 rating decision relied on the January 1992 VA examination in denying the Veteran’s claim. That decision was not appealed. During a January 9, 1997 Board hearing, the Veteran raised the issue of entitlement to service connection for bipolar disorder as secondary to fibromyalgia. In a February 2002 rating decision, the RO refused to reopen this claim on the basis that the evidence submitted was not new and material. That decision was also not appealed. On May 19, 2004, the Veteran filed an appeal to reopen his claim of entitlement to service connection for bipolar disorder. In July 2005, the RO denied this claim. In January 2006, the Veteran appealed. In June 2010, the RO obtained a number of service treatment records not previously of record. These included the Camp Pendleton records that were not available at the time of the January 1992 VA examination. In a November 2011 decision addressing the Veteran’s TDIU claim, the Board held that the Veteran had withdrawn his bipolar disorder claim. In July 2012, the Court granted a joint motion for partial remand on the basis that the RO mistakenly interpreted an October 2010 memorandum as withdrawing the Veteran’s claim of entitlement to service connection for a bipolar disorder. In November 2012, an additional VA examination was conducted. That examiner concluded that the Veteran’s bipolar disorder was at least likely as not related to service. This conclusion was based in part on the service treatment records that were obtained in June 2010. Such records included an October 1989 service treatment record (received 4/16/10, page 5 of 52) indicating that the Veteran was previously transferred from Camp Pendleton to the Philadelphia Naval Hospital with an admitting diagnosis of “bipolar disorder, unspecified.” The November 2012 examiner also relied on a November 1989 service treatment record (received 4/16/10, page 3 of 52) from the Philadelphia Naval Hospital containing a hospitalization-related diagnosis of “bipolar disorder, depressed, unspecified degree.” In May 2013, the RO granted service connection at an initial rating of 100 percent from February 28, 2011. The Veteran appealed the effective date. In February 2017, the Board granted the Veteran an effective date of May 19, 2004. The Veteran appealed, arguing for an effective date of August 13, 1991. A June 2018 JMR held that the February 2017 Board decision failed to consider evidence of in-service treatment for depression that was not made of record until April 2010. The Board agrees with the Veteran that an effective date of August 13, 1991, is warranted. When the Veteran sought to reopen his claim in 2004, the RO obtained service treatment records that were not of record at the time of the June 1992 decision. The November 2012 VA examiner relied on these records in opining that the Veteran’s bipolar disorder is at least as likely as not related to service. Under these circumstances, entitlement to an earlier effective date of August 13, 1991, is warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. 2. Entitlement to an effective date prior to May 19, 2004, for the grant of special monthly compensation (SMC) based on the need for aid and attendance of another is remanded. Finally, the disability rating that will be assigned for the Veteran’s bipolar disorder will affect the Veteran’s claim of entitlement to TDIU and claim of entitlement to an earlier effective date for SMC. Accordingly, a decision as to the Veteran’s TDIU and SMC claims would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Additionally, on Remand the RO should obtain all relevant VA treatment records dated from February 2018 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from February 2018 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Following the assignment of a rating for the Veteran’s bipolar disorder for the period of August 13, 1991, to February 27, 2011, readjudicate the claims for TDIU and an effective date prior to May 19, 2004, for the grant of special monthly compensation (SMC) based on the need for aid and attendance of another. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel