Citation Nr: 18131291
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-04 823
DATE:	August 31, 2018
ORDER
Entitlement to an effective date earlier than June 22, 2012, for the grant of a total disability rating for bipolar disorder is denied.
FINDINGS OF FACT
1. VA denied a disability rating in excess of 10 percent for service-connected bipolar disorder in a September 2005 rating decision.  The Veteran did not appeal this decision, or submit new and material evidence within a year, and this rating decision is final.
2. VA denied a disability rating in excess of 10 percent for service-connected bipolar disorder in a February 2011 rating decision.  The Veteran did not appeal this decision, or submit new and material evidence within a year, and this rating decision is final.
3. VA received the Veteran’s claim to increase the evaluation of her bipolar disorder on June 22, 2012.
CONCLUSION OF LAW
The criteria for an effective date earlier than June 22, 2012, for an evaluation of 100 percent for bipolar disorder, are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 5110 (2012); 38 C.F.R. §§ 3.156, 3.158, 3.160, 3.400 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from March 1987 to May 1990.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 
1. Duties to Notify and Assist
Neither the Veteran nor her attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
2. Entitlement to an effective date earlier than June 22, 2012, for the grant of a total disability rating for bipolar disorder
Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  
For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form.  Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015).  Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment.  Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686.  Here, the Veteran’s claim was received prior to March 24, 2015, and so the regulations extant prior to that date are applicable.  
Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.”  38 C.F.R. § 3.1(p).  An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.”  38 C.F.R. § 3.155(a).  VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).
Also prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b).  The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b).  A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition.  Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination).
An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation.  38 U.S.C.   § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998).  Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder.  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).
A Notice of Disagreement must be filed within one year from the date that the agency of original jurisdiction mails notice of the determination to the claimant. 38 C.F.R. § 20.302.  The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 C.F.R. § 20.302(a).  If no Notice of Disagreement is filed within the time limit provided, the determination becomes final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 1103 (2018).
The Veteran alleges that an effective date earlier than June 22, 2012, is warranted.  On June 30, 2010, the Veteran submitted a claim of entitlement to an increased rating in excess of 10 percent for her service-connected bipolar disorder.  In a February 2011 rating decision, the RO awarded a 50 percent evaluation.  Notification of this decision was sent to the Veteran on February 8, 2011.  
The RO sent the Veteran letters in December 2011 and May 2012 indicating that development was being undertaken for an existing claim.  The Veteran did not initiate an appeal by submitting a Notice of Disagreement in response to the February 2011 rating decision.  Indeed, in a correspondence received on June 21, 2012, the Veteran indicated that she did not request a claim in response to VA’s letters to develop a claim for bipolar disorder.  
Thereafter, a June 22, 2012, Report of General Information documents a VA employee’s discussion with the Veteran.  During the discussion, the Veteran mentioned that she was unable to work as a result of her service-connected bipolar disorder.  The RO construed this statement as an informal claim for an increased rating for bipolar disorder.  Subsequent development led to the award of a total disability rating for her service-connected condition in an August 2012 rating decision.
In her Notice of Disagreement (NOD), received in March 2013, the Veteran’s representative argued that the Veteran had submitted a claim for an increase in June 2010 and only submitted a claim for a total disability rating based on individual unemployability on June 22, 2012.  The disagreement alleged that the Veteran should have received a total rating dated back to her original claim for an increased rating in June 2010.  If a 100 percent evaluation was not warranted for bipolar disorder back to June 2010, the disagreement alleged that VA should have considered whether a TDIU was warranted back to June 30, 2010, when she submitted her claim for a TDIU.  In a May 2016 argument, the Veteran’s representative cited to a VA examination conducted in September 2005 and contemporaneous VA treatment records in arguing that an earlier effective date was warranted or that a claim for a TDIU had been raised.  
After a thorough review of the evidence, the Board finds that an earlier effective date for the award of a 100 percent evaluation for bipolar disorder is not warranted.  
First, the Board finds that the date of the claim is June 22, 2012.  Regarding the Veteran’s arguments from her March 2013 NOD, the Board acknowledges that she did initiate a claim for an increased rating for bipolar disorder on June 30, 2010.  However, the RO issued a rating decision for this claim in February 2011 and notified the Veteran of this claim that same month.  The Veteran did not appeal that decision nor submit new and material evidence within one year.  The rating decision is thus final based on the evidence then of record.  See 38 U.S.C.              § 7105(c) (2012); 38 C.F.R. § 20.1103 (2018).  The Veteran acknowledged as much in her June 21, 2012, correspondence when she indicated that she did not have a claim at that time.  Moreover, that correspondence does not meet the criteria for an NOD, as it does not express dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2014).
Regarding the Veteran’s representative’s argument that the September 2005 VA examination should have been construed as an informal claim for benefits, the Board notes that the Veteran had previously submitted a claim for an increased evaluation for her bipolar disorder in May 2005 and the September 2005 VA examination was provided in response to that claim.  Further, a September 2005 rating decision denied her claim for an increased rating, and the Veteran did not disagree with that decision or submit new and material evidence within one year of the letter that notified her of that decision that same month.  This decision, too, is final.  
Thus, the arguments in the March 2013 NOD and the May 2016 submission are without merit.  There were no active claims prior to June 22, 2012, and no statement received by VA outside of those claims may be construed as an unaddressed informal or formal claim.  As such, the earliest indication of record that the Veteran sought an increase for her bipolar disorder was received on June 22, 2012, when she mentioned that she was unable to work as a result of her bipolar disorder.  
Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  The claim date is June 22, 2012, which is the currently assigned effective date for the 100 percent evaluation for bipolar disorder.  Thus, even if entitlement to a total disability rating for bipolar disorder arose prior to June 22, 2012, the effective date of the evaluation is the later of date of receipt of the claim and the date entitlement arose.  As such, no earlier effective date is warranted under the general effective date provisions.  
Regarding the exception to the general rule, where an earlier effective date may be awarded if there’s a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation, the Board finds that an earlier effective date is not warranted on this basis.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  Treatment records received in the one year prior to June 22, 2012, do not show a factually ascertainable increase in the Veteran’s bipolar disorder.  Similarly, VA treatment records from during this time do not demonstrate a factually ascertainable increase in the Veteran’s bipolar disorder.  
In conclusion, the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than June 22, 2012, for the grant of a 100 percent evaluation for her bipolar disorder.  There is no basis for an earlier effective date.
 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Steve Ginski, Associate Counsel 
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