Citation Nr: 20006158
Decision Date: 01/28/20	Archive Date: 01/24/20

DOCKET NO. 19-08 939
DATE: January 28, 2020

REMANDED

Entitlement to an effective date earlier than September 28, 2017, for bipolar disorder type II is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Air Force from September 1986 to August 1989.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to an effective date earlier than September 28, 2017, for bipolar disorder type II is remanded.

In a February 2018 Rating Decision, the RO granted service connection for bipolar disorder type II and assigned a 100 percent rating, effective September 28, 2017.  In a May 2018 Rating Decision, the RO continued the 100 percent rating from September 28, 2017.  The Veteran filed a June 2018 Notice of Disagreement (NOD) expressing his disagreement with the effective date of the award of service connection for bipolar disorder type II, which the Board notes is timely as to the initial effective date assigned in February 2018.

The RO then issued a June 2018 Statement of the Case (SOC) which properly characterized the issue as: “Whether entitlement to an earlier effective date for the grant of service connection for bipolar disorder type II evaluated as 100 percent disabling earlier than September 28, 2017 is warranted.”  However, in adjudicating the issue, the Agency of Original Jurisdiction (AOJ) discussed law that is applicable to increased rating claims and failed to properly engage with the facts and law that is applicable to earlier effective date claims.  In May 2019 and October 2019 Appellate Briefs, the Veteran’s representative expressed concern with the lack of proper evaluation of the Veteran’s earlier effective date claim in the June 2018 SOC.

The Board agrees with the Veteran’s representative and will not presume this failure to adjudicate the actual issue appealed is harmless.  Instead, the Veteran is entitled to a SOC that addresses the actual issue on appeal, so that he is put on notice of the particular issues decided, the evidence relied upon, and the legal provisions governing the decision.  38 C.F.R. § 19.29 (stating the SOC “must contain: (a) a summary of the evidence in the case relating to the issue with which the appellant has expressed disagreement; (b) a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) the determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.”)

An SOC that adjudicates the wrong issue simply does not meet these requirements. (For example, the June 2018 SOC outlines the rating criteria for an increasing rating claim for a psychiatric condition and concludes that his condition more nearly approximates a 100 percent rating and does not discuss the particular facts of the case in relation to earlier effective date laws).  The law requires an SOC that meets particular requirements.  38 C.F.R. § 19.29 (“must contain”).  Thus, remand is required to provide the Veteran with an SOC that complies with the law.

The matters are REMANDED for the following action:

Issue a SOC that properly addresses the issue of entitlement to an effective date earlier than September 28, 2017, for bipolar disorder type II that is compliant with the particular requirements set forth in 38 C.F.R. § 19.29.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Asante

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.