Citation Nr: 21003869 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-07 375 DATE: January 25, 2021 ORDER Except for the period between February 11, 1998 and July 27, 1998, during which he was receiving active service pay, an effective date of September 19, 1995, but no earlier, for the Veteran’s award of service-connected compensation for bipolar disorder with psychosis and posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) received the Veteran’s initial application for service connection for an acquired psychiatric disorder, claimed as “depression, irritability”, on September 19, 1995; although he submitted similar applications, described by him as claims for service connection for anxiety and for PTSD in July 1997 and in January 1999, respectively, the AOJ did not issue a decision denying service connection for any claimed psychiatric disorder until September 1999. 2. On October 25, 1999, the Veteran filed with the AOJ a document which, although described by him as a request to reopen his previously denied PTSD claim, when liberally construed, satisfies the then-applicable requirements for a timely Notice of Disagreement (NOD). 3. In November 2000, the AOJ issued another decision denying service connection for PTSD and bipolar disorder with psychosis but, in January 2001, the Veteran filed a second document which, although described by him as a request to reopen the previously denied claim, may also be liberally construed as a timely NOD. 4. In July 2003, the AOJ received another claim from the Veteran seeking service connection for PTSD; although the AOJ issued a decision denying his request to reopen his PTSD claim, the explanatory letter intended to notify the Veteran of this decision was not mailed to the address most recently identified by the Veteran as his correct mailing address. 5. In October 2006, the Veteran submitted another request to reopen his previously denied claims for service connection for PTSD and bipolar disorder; the AOJ denied both requests in a September 2008 decision which, unlike the July 2003 decision, was mailed to the correct address with an appropriate explanatory letter; however, in October 2008, after he was notified of the September 2008 decision, the Veteran submitted new and material evidence to the AOJ. CONCLUSION OF LAW Except for the period between February 11, 1998 and July 27, 1998, the criteria for an effective date of September 19, 1995 for service-connected compensation for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5110, 5304(c); 38 C.F.R. §§ 3.114, 3.303, 3.307, 3.309, 3.400, 3.654, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to March 1987, from November 1987 to November 1991 and from February to July of 1998. This case comes to the Board from an AOJ decision issued in March 2013, which granted the Veteran’s claim for service-connected compensation for bipolar disorder with psychosis and posttraumatic stress disorder (PTSD) and assigned an initial 100 percent disability rating, effective July 16, 2010. Although the March 2013 decision contained rulings on five other questions, the Veteran’s timely notice of disagreement (NOD) appealed only the effective date of compensation for his service-connected psychiatric disorders. In September 2020, the Veteran testified before the undersigned at a Virtual hearing. A transcript of that hearing is of record. Applicable Law The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “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 implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim will be the day following service or date entitlement arose if the claim for service connection is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). Appellate review of a rating decision is initiated by a notice of disagreement (NOD) and completed substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.20. Failure to file a NOD within one year from the date of notice of the decision renders a rating decision final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 19.52, 20.1103. The one-year period in which a claimant for benefits may appeal the denial of an unfavorable decision begins when “[the AOJ] mails notice of the determination to him or her.” 38 C.F.R. § 19.52(a). In general VA satisfies its duty to notify a claimant of the results of a decision by mailing a copy of the decision to the last known address disclosed by the record, and the burden is on the appellant to notify VA of any changes in his or her address. See McCullough v. Principi, 15 Vet. App. 272, 275 (2001); see also Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc). There is also a presumption of regularity which generally requires the Board to assume that VA personnel discharged their duties when mailing decision documents. See Dippel v. West, 12 Vet. App. 466, 471 (1999). Unless the presumption is rebutted, the Board must assume that VA employees addressed a decision correctly and delivered it into the custody of the Postal Service. See Woods v. Gober, 14 Vet. App. 214, 220 (2000). As the Court has stated, when the claimant fails to rebut the presumption of regularity, delivery is proven. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). Under 38 C.F.R. § 3.156(b), the AOJ has the duty to consider new and material evidence if that evidence is received prior to the expiration of the appeal period. If the AOJ does not readjudicate a claim after receiving new and material evidence within the appeal period, the failure to do so may prevent the decision from becoming final. See Young v. Shinseki, 22 Vet. App. 461, 469 (2009). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Analysis The Veteran has been diagnosed with PTSD and bipolar disorder with psychotic features. The AOJ eventually granted the Veteran’s claim based on the February 2013 opinion of an examiner that it was likely that his psychiatric symptoms were “a continuation of complaints shown in service.” Treatment records from the Veteran’s last period of active duty service indicate that, as of May 1998, his mood had been depressed for a duration greater than three years. According to the records, the Veteran experienced difficulty concentrating for a similar duration. Both symptoms, the records suggest, had their initial onset during service in the 1991 Persian Gulf War. In May 1998, the Veteran apparently described his feelings of depression as limiting his activities. On September 19, 1995, the AOJ received the Veteran’s initial application for service-connected compensation. The Veteran identified one of the disabilities for which he sought compensation as “depression, irritability . . .” This is not the diagnosis for which he eventually received benefits. But the Board is generally required to treat this kind of claim as a claim for service connection for any acquired psychiatric disorder which may be related to military service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). At the hearing, the Veteran seemed to refer to a denial of his psychiatric claim in 1995. But the Board has reviewed the electronic claims file and it appears that the AOJ did not issue a decision on his claim for more than four years. In July 1997, the Veteran filed a new application seeking compensation for several disabilities, including anxiety. In January 1999, he submitted a third application seeking compensation for PTSD. In September 1999 the AOJ finally issued a decision addressing service-connected compensation for ten claimed disabilities. With respect to the Veteran’s claimed psychiatric symptoms, the AOJ denied service connection for PTSD, nervous condition, memory loss, anxiety, sleep disorder, depression and irritability. In October 1999, less than two months after he was notified of the decision, the Veteran submitted a written statement indicating his “wish to reopen” his claims for PTSD and for “nervous condition, memory loss, anxiety, sleep disorder, depression, and irritability.” The currently applicable version of 38 C.F.R. § 19.21(a)(1) generally requires that a NOD to be submitted on a standard form. But until March 2015, standard forms were not required. See 79 Fed. Reg. 57,660 (September 25, 2014). In 1999, 38 C.F.R. § 20.201 (“Notice of Disagreement”) defined a NOD as any “written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result . . . .” Id. Documents containing statements which might potentially operate as NODs were liberally construed. See, e.g., Anderson v. Principi, 18 Vet. App. 371, 375 (2004) (“Liberally interpreted, the appellant’s ‘wonder why it wasn't allowed back in 1985’ was an expression of disagreement with the effective date assigned.”). A request to reopen a previously denied claim based on new and material evidence under 38 C.F.R. § 3.156(a) is different from a NOD pursuant to former 38 C.F.R. § 20.201. Because the AOJ received the October 1999 written statement less than one year after notifying the Veteran of the September 1999 denial of his psychiatric claim, the Veteran’s statement might plausibly be interpreted as either a NOD or a request to reopen. Interpreting the statement as a NOD is more favorable to the Veteran because it potentially authorizes an earlier effective date and because it relieves the claimant from the burden of submitting evidence which was not available to the AOJ in September 1999. The Board finds that, liberally construed, the October 1999 statement that the Veteran wished to “reopen” his claims for service connection for “PTSD, nervous condition. . .” was an expression of disagreement with the September 1999 rating decision denying his claim for service connection for a psychiatric disorder and indicated his desire to “contest the result” announced in that decision. 38 C.F.R. § 20.201 (1999). Treating the October 1999 statement as a request to reopen the psychiatric claim, the AOJ issued a decision in November 2000, which continued to deny service connection for the Veteran’s psychiatric disorders. Less than one year after notifying him of this decision, the Veteran filed another written statement, dated January 2001, indicating his desire to “reopen a previously denied claim for PTSD and various medical concerns. . .” For essentially the same reasons described in the discussion of the October 1999 statement, the subsequent January 2001 statement also satisfied the then-applicable requirements for a timely NOD under the pre-amendment version of 38 C.F.R. § 20.201. Between January 2001 and March 2013 – when the AOJ granted compensation and assigned the effective date at issue in this appeal – the Veteran made two more unsuccessful attempts to obtain compensation for psychiatric symptoms. In July 2003, he filed a written statement seeking “service connection for PTSD.” The AOJ denied this claim in May 2004. But the AOJ attempted to notify the Veteran of this decision by mailing a letter, with a copy of the decision, to the address in South Carolina identified by the Veteran in his July 2003 statement, and not the address in Maryland the Veteran had provided to the AOJ in August 2003. The file indicates that the Maryland address was from a residential education and training facility for Veterans. It appears that the AOJ may have defaulted to the South Carolina address in reliance on a note suggesting that the Veteran was leaving the Maryland facility in August 2003. But a September 2003 examination report continued to identify the Maryland facility as the Veteran’s address. And a letter to the Veteran from the Defense Department, addressed to the Veteran at the Maryland facility, successfully reached them there in January 2004. The Board finds that the May 2004 decision never became final because the AOJ failed to notify the Veteran by mailing a copy of the decision to the last known address disclosed by the record. See 38 C.F.R. § 19.52(a); McCullough, 15 Vet. App. at 275. The Veteran submitted yet another request to reopen his previously denied claims for service connection for PTSD and bipolar disorder in October 2006. The AOJ denied both requests in September 2008. It appears from the explanatory letter that the AOJ mailed a copy of this decision to the address identified by the Veteran in his most recent correspondence. In October 2008, the AOJ received a document from the Veteran with information concerning the Veteran’s period of active duty between November 1987 and November 1991. The document is labelled “Military Service Data” and, although the identity of the official database or records repository that created the document is unclear, the document includes the following text “Conflict Locations: Gulf War (01/00/1991 to 4/00/1991). . . Combat: Yes . . .” According to the September 2008 AOJ decision, the request to reopen the Veteran’s PTSD claim was denied because “the stressors you reported as having occurred in Southwest Asia were not confirmed. . . .” The document the Veteran submitted in October 2008 amounted to new and material evidence for the purposes of 38 C.F.R. § 3.156(a) because it was not previously available to the AOJ and it has a tendency to prove a previously unestablished fact (the Veteran’s experience of combat stressors in the Gulf War) which the AOJ had considered necessary to establish the claim. Because the Veteran submitted the document before the expiration of the appeal period, subsection (b) of the same regulation required the AOJ to reconsider the evidence in connection with the psychiatric claim which it had denied in September 2008. Because the AOJ failed to readjudicate the psychiatric claim after receiving the document, the September 2008 decision did not become final. See Young, 22 Vet. App. at 469. The AOJ assigned an effective date of July 16, 2010 as the effective date because that was the day it received a copy of an e-mail message from the Veteran to the President which included yet another request for compensation for PTSD. If the previous decisions denying similar claims had ever become final, then this effective date would be consistent with 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. But as the Board has explained, the Veteran initiated timely appeals of the September 1999 and November 2000 decisions. The May 2004 decision never became final because there is inadequate evidence of proof of notice to the Veteran. And the September 2008 decision did not become final because, although he was notified appropriately, the Veteran submitted new and material evidence within the one-year appeal period. Under these circumstances September 19, 1995, the date of receipt of the Veteran’s initial claim for a service-connected psychiatric disorder, is the only effective date consistent with 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. An effective date of September 19, 1995 raises one potential complication – i.e., it begins the payment of service-connected compensation before his final period of active duty service (February 11, 1998 and July 27, 1998). 38 U.S.C. § 5304(c) and 38 C.F.R. § 3.654 prohibit the payment of VA pension or compensation benefits for any period in which the claimant receives active service pay. See Buffington v. Wilkie, 31 Vet. App. 293, 299 (2019). For this reason, in granting the Veteran’s request for an earlier effective date, the Board will make an exception corresponding this interval of time. Except for the period between February 11, 1998 and July 27, 1998, during which he was receiving active service pay, an earlier effective date of September 19, 1995, but no earlier, for the award of service-connected compensation for bipolar disorder with psychosis and posttraumatic stress disorder (PTSD), is granted. During portions of his hearing testimony, the Veteran appears to seek an effective date of April 1991, at the time of his return from his deployment to the Southwest Asia, apparently because the severity of his condition prevented him from filing his claim earlier. 38 U.S.C. § 5110(4)(A) and 38 C.F.R. § 3.400(b)(ii)(B) authorize VA to assign an effective date earlier than the date of claim when a disability is so incapacitating that it prevents the claimant from filing the claim earlier. But both provisions apply only to claims for disability pension, rather than service-connected compensation. See Id.; compare 38 U.S.C. § 101(15) (defining “pension” as “monthly or other periodic payment made by the Secretary to a veteran because of service, age, or non-service-connected disability. . .”) Even if the scope of 38 U.S.C. § 5110(4)(A) and 38 C.F.R. § 3.400(b)(ii)(B) were broad enough to include claims for service-connected disability compensation, the appropriate effective date remains the date VA receives the claimant’s application unless “the veteran applies for a retroactive award within one year from [the date of permanent and total disability].” Assuming for the sake of argument that the Veteran became totally and permanently disabled in April 1991, it is undisputed that VA received no application from the Veteran before September 19, 1995, more than four years later. For these reasons, the applicable laws and regulations do not authorize an effective date for service-connected psychiatric disorders prior to September 19, 1995. To the extent that the Veteran seeks an effective date before that date, his claim is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, Counsel 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.