Citation Nr: 0500624 Decision Date: 01/10/05 Archive Date: 01/19/05 DOCKET NO. 97-13 493A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than April 4, 1994, for the assignment of a 100 percent rating for service- connected schizophrenia, including based on clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Eric C. Conn, Attorney ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from November 1967 to August 1969. This appeal arises before the Board of Veterans' Appeals (Board) from a February 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that denied a claim for an effective date earlier than April 4, 1994, for a total schedular evaluation for the veteran's service- connected schizophrenic disorder. In March 1999, the Board remanded the claim to the RO for readjudication, including consideration of the veteran's arguments of CUE. The RO issued a rating decision in September 1999 that addressed the veteran's CUE arguments. In December 1999, the Board denied the claim for an effective date earlier than April 4, 1994, for the assignment of a total schedular evaluation for service-connected schizophrenia, including on the basis of CUE. In January 2002, the United States Court of Appeals for Veterans Claims (Court) granted a December 2001 joint motion for remand filed by the VA Secretary and the veteran. In doing so, the Court vacated the Board's December 1999 decision and remanded the matter for readjudication. In October 2002, the Board issued a development memorandum that sought additional development regarding the veteran's claim. However, due to the invalidation of certain regulatory authority pursuant to which the Board had generally been issuing such development memoranda, the Board issued a superseding remand in September 2003, directing the RO to undertake the requested development. See Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (invalidating 38 C.F.R. § 19.9(a)(2) (2002)). FINDINGS OF FACT 1. All requisite notices and assistance owed to the veteran have been provided, and all evidence necessary for an equitable disposition of the claim has been obtained. 2. The veteran's service-connected schizophrenia was manifested by complete impairment, with bizarre behavior, active psychotic symptoms, violence and aggressiveness, and other impairments, as of a VA examination on November 7, 1973. 3. The RO's December 1973 RO rating decision was clearly and unmistakably erroneous in that it did not properly apply the appropriate rating criteria in effect at that time to the evidence of record at that time; but for that error, the outcome would have been manifestly changed. CONCLUSION OF LAW The criteria for an effective date of November 7, 1973, for a 100 percent rating for service-connected schizophrenia are met. 38 C.F.R. § 3.105 (2004); 38 C.F.R. § 4.132, Diagnostic Code 9204 (1970). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty from September 1948 to June 1957 and from August 1957 to May 1969. In September 1969, one month after separation from service, the veteran filed a claim for service connection for various conditions, including a combat injury to his leg, nervousness, and headaches. On VA psychiatric evaluation in October 1969, he was cooperative and attentive. His affect was bland, but appropriate. His mood was anxious and slightly depressed. He was oriented in three spheres. Recent and remote memory was good. His stream of thought was clear, coherent, and relevant. No thought disorders were detected. His judgment was good. Intelligence was average. The ability to think abstractly was good. There were no suicidal thoughts, hallucinations, paranoid ideations, or ideas of reference. The diagnosis was anxiety reaction, which was mild to moderate. The veteran was hospitalized at the Hato Rey Psychiatric Hospital from March to June 1970 because of aggressive- destructive behavior, disorders of perception, and alcohol intake. He had first appeared at a VA facility, which then referred him to a "contract hospital," according to a March 1970 VA progress note. His production was disorganized. He admitted to auditory hallucinations and hyperkinetic seizures. His affect was flat. He was disoriented as to time and place. His memory, intellectual capacities, judgment, and insight were handicapped. After the initial acute symptoms started to subside, he was transferred to an open ward, where he showed good adjustment. On medication and therapeutic interviews, he was able to sustain his symptomatic improvement, and later when weekly passes were allowed. The diagnosis was schizophrenic reaction, undifferentiated type, chronic, as noted on the Hato Rey Psychiatric Hospital's hospital summary (VA Form 10-1000). According to a March 1970 VA medical certificate, the veteran was hospitalized at a VA facility because he was acutely psychotic, with a diagnosis of chronic, severe schizophrenic reaction. In July 1970, in part, the RO awarded service connection and a 10 percent rating for anxiety reaction, effective August 30, 1969, the date after separation from service. From September to November 1970, the veteran was hospitalized at a VA facility because of anxiousness, nervousness, and fear, with nightmares and insomnia. He was admitted for treatment of severe, chronic schizophrenic reaction, undifferentiated type. He had been unemployed since service. It was also noted that he had recently been psychiatrically hospitalized (three months earlier) at the "Julia Clinic" and that he was receiving prescriptions. During hospitalization, no hallucinations were noted, and his delusional ideation became better. He became more sociable and active, with improvement in his condition, including his socialization. It was noted that he had been home on passes and that he had handled that well. He was discharged, with referral to the mental health clinic for continued outpatient treatment. The hospital discharge summary rendered a diagnosis of schizophrenic reaction, undifferentiated type, chronic, severe. His improvement in various aspects and symptoms was noted, including in terms of delusional ideation, hallucinations, sleep, and nightmares. The veteran filed a claim for an increased rating in March 1971. In March 1971, the RO requested a medical opinion to reconcile two psychiatric diagnoses. In an April 1971 "expert opinion," Dr. Lombardi, M. D., a VA doctor, opined that the veteran's anxiety reaction had matured into schizophrenic reaction. In a May 1971 rating decision, the RO recharacterized the veteran's service-connected psychiatric disability as "schizophrenia, undifferentiated type." The RO awarded a temporary total (100 percent) rating due to hospitalization effective from September 12, 1970; and a 50 percent rating, effective from December 1, 1970. On VA psychiatric examination in November 1973, the veteran's claims folder was not reviewed. It was noted that the veteran's last hospitalization had been in 1970. The examiner incorrectly noted that the last hospitalization had been from March to June 1970, when it had in fact been from September to November 1970. The veteran was now living with his spouse and child, and he had been unemployed for four years. He stayed away from home a great deal and drank alcoholic beverages frequently. He came to the interview alone; his personal hygiene was good. He appeared cooperative but did not make eye contact. He moved continuously, and his fingers were trembling. His behavior was described as "bizarre." Thought production was realistic; but flow of ideas was increased and mildly retarded, with looseness of associations. His speech was coherent, relevant, and perseverant. Content of thought was filled with aggressive, destructive and persecutory ideas. He revealed ideas of reference. He was oriented in all three spheres; memory was rather good. He made some abstractions from proverbs. Mental grasp for current events was rather good. Mental concentration was fairly poor. Mathematics calculations were rather good. His fund of information was almost adequate, judgment was impaired. The diagnosis was schizophrenic reaction, undifferentiated type, chronic. The condition was moderately severe to severe, but he was able to manage his VA benefits. In December 1973, the RO continued the 50 percent rating for schizophrenia. On VA psychiatric examination in December 1975, the veteran's medical records were not reviewed. It was noted that the veteran was unemployed, lived with his family in the home of his widowed mother, and was treated by a fee-basis psychiatrist. He was tense, restless with a nonsensical attitude, distracted, and uninterested in the examination. However, contact with reality was correct. His responses were not always pertinent, but he supplied very pertinent information about his mental content. He described frequent quarrels with friends and his brothers. Sleep was very restless, even with medication. He heard noises and footsteps inside the house. The veteran's spouse described him as arrogant, cruel and abusive. He had occasional episodes of excitement, with aggressive, violent, and destructive tendencies and followed by crying spells and verbalized feelings of unworthiness and suicidal ideas. Insight and judgment capacity were fair. The diagnosis was moderately severe to severe schizophrenic reaction, undifferentiated type; he was competent to handle VA benefit payments. In January 1976, the RO continued the 50 percent rating for schizophrenia. The veteran filed a claim for a TDIU rating in May 1976. The veteran referred to monthly treatment by a doctor and by "VA Hospital Staff Doctors." Several prospective employers wrote in letters received in May through July 1976 that the veteran had been denied employment due to receipt of Social Security Administration (SSA) disability benefits for a nervous disorder. The RO denied the claim for a TDIU rating in June 1976. On VA psychiatric examination in November 1977, it was noted that the veteran had been admitted t the Hato Rey Psychiatric Hospital in March 1970 and had been hospitalized for more than two months because of schizophrenia reaction, undifferentiated type, chronic. He was divorced and lived with his mother. He had been unable to go to school due to lack of concentration and nervousness. He had not been able to be gainfully employed since his discharge. It was noted that he had been receiving monthly treatment from a fee-basis psychiatrist (Dr. Hurtado de Mendoza). Medications included Serentil, Vistaril, and Elavil. A friend accompanied the veteran to the interview. He was well dressed and well groomed. He appeared very tense, anxious, and suspicious of his surroundings. He was in good contact with reality and alert; his speech was coherent and logical. There was no thought disorder in process. Thought content was referential, with paranoid ideations. He related poorly to others and did not allow anyone close to him. He described auditory hallucinations and visions. Affect was dull and inappropriate; mood was depressed. He had had self- destructive ideations, but he did not seem to be suicidal at examination. He was oriented, but memory was poor for recent events. Concentration was very poor. Sleep was poor, with nightmares. He had good sexual relations, but his associations were only physical without affection. Judgment was good, but he had no insight. The diagnosis was chronic schizophrenia, undifferentiated type. The level of disability was severe, but he was competent to handle funds. In April 1978, the RO continued the 50 percent rating for schizophrenia. The VA from September 1982 to March 1983 hospitalized the veteran. Reports from October 1982, December 1982, and February 1983 remarked that he was completely unable to work and to handle his funds properly; the overall prognosis was severe. The March 1983 discharge summary indicated that the veteran displayed very poor communication, poor judgment, poor interpersonal relationships, and inappropriate childish affect. However, as acute symptomatology was being controlled, he was allowed to go home on weekend visits frequently and was able to adjust to the home environment during these visits. However, on the last visit offered, he failed to return as expected, and he was discharged as absent without official leave. On VA examination in June 1984, the veteran stated that he was always nervous, that he did not like to be around people, and that he was not able to work. He admitted to occasionally drinking, but denied substance abuse. On mental status examination, he was alert, verborrheic, cooperative, and related satisfactorily to the examiner. He had flight of ideas. Sensorium was clear. Affect was moderately exalted. He was disoriented in time. Memory for remote and recent events was fair. Concentration and immediate memory were poor. Thought content was characterized by some ideas of reference, although there were no overt psychotic processes at present. He had scopophobia and angiogenic ideation. Judgment was moderately impaired. Insight was fair. The diagnosis was undifferentiated schizophrenia, in partial remission. On Axis V, he was described as being Level 4 to 5. The veteran was found competent. In a March 1985 rating decision, the RO awarded a temporary total rating for the schizophrenia effective from September 1982 to March 1983, based on that VA hospitalization; it then assigned a 50 percent rating as of April 1, 1983. On VA examination in July 1986, the veteran came to the office accompanied by his spouse and was examined with and without her presence. His claims folder was not available, and the examiner did not have any medical records after 1977 available for review. The examiner noted that the veteran had apparently not been able to work or to study since his service days. The veteran admitted to restlessness and having used marijuana and cocaine. He described problems with neighbors, requiring occasional police intervention. He indicated that a fee-basis psychiatrist was treating him and that he occasionally used medication. The examiner commented that the veteran had a rather blunted affect. He looked distant and rather suspicious. He seemed to have no insight or motivation. His conversation was coherent and relevant, but the content gave quite a pessimistic attitude and was quite paranoid. He was not actively hallucinating. There was no looseness of association. He was oriented in all three spheres. Memories were poor as was his concentration. Retention and recall were poor, as was judgment. He also was described as "quite dependent." The diagnosis was schizophrenia, chronic, undifferentiated type (active). The highest level of adaptive functioning in the past year was "very poor." However, the veteran was competent to handle VA funds. In November 1986, the RO continued the 50 percent rating for schizophrenia. On VA examination in July 1988, the veteran and his spouse were interviewed separately. The claims folder was not available; only a thin outpatient folder was available for review. The veteran was being followed as an outpatient by his fee-basis psychiatrist. He was taking Trilafon, Xanax, and Ponstel. The impression was a rather chronically depressed person. He indicated that he spent his time wandering outside and drinking a lot. His wife stated that sometimes the veteran did not come home at night. Sometimes he got in fights, apparently under the effect of alcohol. On mental status examination, the examiner noted poor direct eye-to-eye contact. He seemed depressed, withdrawn and despondent with little interest in his surroundings. His answers were relevant, coherent, but not logical. The thought content dealt with chronic depressive feelings, feelings of emptiness, frustration. There were non-organized persecutory and referential delusions. He complained vaguely about auditory hallucinations. He was prone to become argumentative, aggressive, and destructive; this increased under the effects of alcohol. The affect was rather inappropriate; the mood was depressed. He was oriented in all three spheres. Memory was fairly preserved, with lacunae for specifics. Intellectual functioning was average. Judgment was poor. Insight was very poor. Diagnoses were schizophrenia, undifferentiated type, with chronic depressive features; and substance use disorder, alcohol dependence, continuous. He was mentally competent to handle funds. In August 1988, the RO continued the 50 percent rating for schizophrenia. On April 4, 1994, the veteran submitted a claim for a TDIU rating due to his service-connected schizophrenia. He reported receiving SSA benefits ever since separation from active service. In connection with the claim for a TDIU rating, the veteran also submitted a March 1994 psychiatric evaluation from Dr. Raul Correa Grau, M.D. The veteran's overall appearance indicated depression and slight confusion, with hostility and suspicion. Thought content indicated good contact with reality. He sometimes felt like he would explode and would isolate himself from others. He referred to war memories and nightmares of Vietnam. The examiner noted that the veteran had many symptoms of PTSD, but also a history of hallucinations. The examiner noted that the veteran's ability to work had been very poor and that he had, in fact, never worked. The diagnoses were PTSD and probable chronic schizophrenia with partial symptoms. His functional score on the Global Assessment of Functioning (GAF) scale was approximately in the 40's. In June 1995, the RO requested SSA records relating to the veteran. These records included a September 1970 psychiatric evaluation indicating that the veteran was not mentally competent to work or to handle his own funds. In July 1995, records were received from the veteran's fee- basis psychiatrist, Alfredo Hurtado de Mendoza, M.D., dated from August 1989 to October 1994. In August 1989, the veteran complained of insomnia, nightmares and headaches; he spent most of his time alone. In January 1991, he described episodes of anger in his interpersonal relationships; he remained isolated. In February 1992, he reported hearing voices. In March 1993, it was noted that his impoverishment of daily life persisted with his ill-humored behavior with people. In October 1994, the report was similar to the past; in all reports the examiner noted that the degree of the veteran's impairment was severe and that the prognosis was poor. In August 1995, the VA received a copy of the veteran's SSA disability award decision. The SSA had found the veteran disabled since August 1969 due to a diagnosis of schizophrenia, undifferentiated type with paranoid features. Also submitted in August 1995 was a copy of an August 1970 psychiatric evaluation from a non-VA psychiatrist, J. A. Mojica Sandoz, M.D. The veteran's daily activities consisted of walking aimlessly. He tolerated the examination poorly, and he showed a poor capacity for establishing adequate interpersonal relationships. He admitted to auditory hallucinations. His capacity for remote and intermediate memory was spotty; his recent memory was adequate. He was partially disoriented in time and place. He had a poor capacity for judgment and no insight of his mental condition. The diagnosis was schizophrenia, undifferentiated type, with paranoid features, manifested by anxiety, tension, depressed and hostile affect and content of thought, ideas of insufficiency, marked insecurity, suicidal and homicidal ruminations, ideas of reference, tendency toward isolation, withdrawal, auditory hallucinations, poor capacity for memory, orientation, and judgment, and no insight. The examiner concluded that the veteran was currently psychotic; although he could manage himself in his basic needs (eating, bathing, dressing), his capacity for establishing adequate and lasting interpersonal relations was markedly impaired. The veteran had a marked tendency toward dependency, and the prognosis was guarded. The psychiatrist concluded that "[t]here is no doubt that [the veteran] is not mentally competent to engage in any kind of competitive, self- sustaining type of activity and I would suggest that a mature, responsible person be named to handle [his] funds." In August 1995, an October 1971 private psychiatric evaluation report from Jose M. Reyes, M.D., was also received. It was noted that the veteran had friends and got along well with people but that he did not socialize. He could take care of his personal needs, needed little supervision, and could handle funds. He was not considered psychotic at time of examination. He did not show much personality deterioration at the present time. The impression was chronic, undifferentiated schizophrenia, in fair remission with a guarded prognosis. On an accompanying supplemental questionnaire, it was noted that the veteran's ability to relate to other people was moderately impaired; that his daily activities such as attending meetings, working around the house, and socializing, were restricted to a moderately severe degree; that the degree of deterioration in his personal habits was mild; and that the constriction of his interest was severe. All of the following matters were described as poor: ability to comprehend and follow instructions; to perform work requiring frequent contact with others; to perform work where contact with others will be minimal; and to perform simple, complex, repetitive, and varied tasks. It was felt that there would be only limited improvement in the veteran's condition over a period of several years. Report of VA examination conducted in July 1995, noted that the veteran was accompanied to the interview by his spouse. He continued his fee-basis program of treatment. He was currently taking Trilafon and Valium. Both he and his spouse acknowledged he continued to drink heavily. The veteran spent most of his time away from home and getting involved in arguments with other people. The examiners found his responses to questions to be, in general, relevant and coherent. The content dealt with no interest in getting involved in anything. He was distrustful of others, but not overtly delusional or actively hallucinating. The affect was inappropriate; the mood was hyperactive, anxious and restless. He was oriented and memory was grossly preserved. Judgment was fair and insight was very poor. He was considered mentally competent to handle VA funds. The diagnoses on axis I were: 1) schizophrenic disorder, residual type with depressive features; and 2) substance use disorder, alcohol dependence, active. He was assigned a GAF score of 60. In a rating action dated in August 1995, the RO granted a 100 percent evaluation for schizophrenic disorder, residual type with depressive features, effective from April 4, 1994. Thereafter, the veteran requested an earlier effective date for the award of the 100 percent evaluation for schizophrenia. He also claimed CUE in prior rating decisions that assigned only a 50 percent rating to his disability and in the rating decision that only awarded a temporary total rating from September 1982 to March 1983. In a rating action dated in April 1996, the RO found CUE in the RO's March 1985 rating decision that had awarded a temporary 100 percent rating from September 7, 1982, to March 22, 1983, based on a period of psychiatric hospitalization; the RO awarded a temporary 100 percent rating for an additional six months of convalescence due to the hospitalization. Thus, the March 1985 rating decision was amended to reflect a 50 percent rating from December 1, 1970; a 100 percent rating from September 7, 1982; a 50 percent rating from October 1, 1983; and a current rating of 100 percent effective from April 4, 1994. As noted above, in December 1999, the Board denied a claim for an effective date earlier than April 4, 1994, for the assignment of a total scheduler evaluation for service- connected schizophrenia, including on the basis of CUE. In January 2002, the Court vacated and remanded the Board's December 1999 decision. In doing so, the Court granted a joint motion filed by the VA's and the veteran's representatives. That joint motion set forth several bases for seeking a remand. Primarily, the parties sought a discussion of (1) whether the VA failed in its duty to assist the veteran by not obtaining various items of evidence in connection with prior RO rating decisions and (2) whether such failure to assist either resulted in CUE in any of those prior RO rating decisions or otherwise rendered non-final any of those prior RO rating decisions. In February 2003, the VA received copies of the veteran's service medical records. His August 1969 separation medical history and examination reports noted no psychiatric symptoms. However, the medical history report noted that the veteran had been a patient in a mental hospital or sanitarium, described as the St. Albans Hospital 11425. In May 2003, the RO received copies of VA treatment records dating as far back as September 1970. A June 2003 response from the National Personnel Records Center (NPRC) indicated that a search for inpatient clinical records from a Naval hospital in New York for the month of October 1968 had been unsuccessful. According to a March 2004 note from a private psychiatrist, Alberto Hurtado de Mendoza, M.D., the veteran had been receiving ambulatory psychiatric treatment on a monthly basis since August 1972 and that he was unable to engage in any work. In May 2004, the RO received documents from the SSA pertaining to the veteran's SSA disability award. Those documents included the report of a summary of the veteran's non-VA hospitalization from March to June 1970; a May 1970 contact with the veteran's mother, indicating that the veteran's condition had worsened with VA treatment and referring to a March 1970 hospitalization due to a violent outburst; Dr. Mojica Sandoz's September 1970 psychiatric evaluation; Dr. Reyes' October 1971 psychiatric evaluation; a November 1973 VA psychiatric evaluation; and a November 1977 VA psychiatric evaluation. II. Analysis Before turning to the more substantive aspects of the veteran's claim, the Board must accurately identify the proper issue that is in appeal. The appeal has been variously characterized in previous RO and Board decisions, as well as in pleadings filed by the parties before the Court, as either (1) a claim for an effective date earlier than April 4, 1994, for the assignment of a total schedular evaluation for schizophrenia, to include based on CUE; or (2) an effective date earlier than April 4, 1994, for the assignment of a TDIU rating, based on CUE. The veteran has been pursuing the same essential claim ever since the RO's August 1995 rating decision (which at that time was described as a claim for an increased rating) that awarded a 100 percent rating for schizophrenia effective April 4, 1994. The effective date was based on the date of receipt of a claim that the veteran had filed alleging that he was unemployable due to his service-connected schizophrenia and seeking a TDIU rating. The record reflects that the veteran was awarded a schedular 100 percent rating for his service-connected schizophrenia under 38 C.F.R. § 4.132, Diagnostic Code 9205 (1994). It does not appear that the RO relied upon the provisions of 38 C.F.R. § 4.16(a) (1994), which govern determinations of TDIU ratings. The RO's August 1995 decision appears to have outright awarded a schedular 100 percent rating for the veteran's service-connected schizophrenia. Cf. 38 C.F.R. § 4.16(c) (1994) (where the only compensable service- connected disability is a mental disorder rated 70 percent and such mental disorder precludes veteran from securing or following substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular rating under the applicable diagnostic code). There does not even appear to have been a need to invoke the provisions of 38 C.F.R. § 4.16(c) The Board reasonable concludes that the first issue has always involved a claim for an earlier effective date for the assignment of this schedular 100 percent rating for the veteran's schizophrenia. A. Veterans Claims Assistance Act of 2000 Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) was enacted on November 9, 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). The VA implemented the VCAA in 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations enhanced the notification and assistance duties of the VA to claimants. In the joint motion that served as the basis for the Court's January 2002 order that vacated and remanded the Board's December 1999 decision, the parties indicated that the Board should apply the provisions of the VCAA, as appropriate, to the issue of an earlier effective date based on the veteran's 1994 claim. The duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed, either in Board decisions (see Livesay v. Principi, 15 Vet. App. 165 (2001)), or in RO decisions (see Parker v. Principi, 15 Vet. App. 407 (2002)). CUE claims are not conventional appeals; rather, they are requests for revision of previous decisions. A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Livesay, 15 Vet. App. at 178-179. Moreover, a litigant has the burden of establishing such error on the basis of the evidence then of record. Ibid. In any event, the Board finds that the veteran has been notified of the laws and regulations governing CUE claims and reasons for the denial of the claim and that all relevant evidence has been associated with the record. In particular, the RO sent the veteran a supplemental statement of the case in September 1999 that addressed the CUE arguments. Thus, any pre-VCAA duties to notify and assist have been met with regard to the aspects of the veteran's claim that are predicated upon CUE. Hence, the claim for an effective date earlier than April 4, 1994, for the assignment of a total schedular evaluation for schizophrenia based on CUE is ready for consideration on the merits. However, the veteran's claim for an effective date earlier than April 4, 1994, for the assignment of a total schedular evaluation for schizophrenia is also predicated on grounds other than CUE. To that extent alone, the provisions of the VCAA do apply, and the Board must first address whether the VA has complied with its duties to notify and assist the veteran regarding that aspect of his overall claim for an earlier effective date for a 100 percent rating for schizophrenia. Recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) (2004) apply to cases pending before VA on November 9, 2000, even if the initial agency of original jurisdiction decision was issued before that date; and (2) that a claimant must be given notice in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) before an initial unfavorable decision is issued. Section 3(a) of the VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(b)(1) require that, upon receipt of a complete or substantially complete application, the VA must notify the claimant and any representative of any information and any medical or lay evidence not previously provided to the VA that is necessary to substantiate the claim; this notice requires the VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion the VA will attempt to obtain on the claimant's behalf. In Pelegrini, the Court appears to have held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." The Court stated that this new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In this case, the initial unfavorable decision was made before the date of the VCAA's enactment on November 9, 2000. However, even under Pelegrini, the notices regarding the veteran's claims informed him of the bases for the relevant decisions, what types of evidence would be needed, and how the evidence would be secured. The Board also concludes that any defect that may exist with regard to the timing of the VCAA notice to the veteran was harmless because of the extensive, thorough, and informative notices provided to him throughout the adjudication of this claim. Moreover, as the Court noted in Pelegrini, there is no error in the RO's not providing notice of the VCAA's requirements prior to the initial adjudication decision where such notice was not mandated at the time of the initial adjudication decision. Pelegrini, 18 Vet. App. at 120. The VA has informed the veteran of all applicable laws and regulations, what types of evidence are needed to support his claim, who is responsible for securing items, and the need for any other evidence that the veteran may have in his possession. The VA's thorough notices of all matters required by the VCAA and its regulatory progeny throughout this adjudication have cured any defects involving notice of the provisions of the VCAA or the timing of such notice. The RO sent the veteran a statement of the case in May 1997; and supplemental statements of the case in November 1998, September 1999, May 2004, and June 2004. Taken together, all of these documents discussed the evidence considered and the pertinent laws and regulations, including provisions of the VCAA and the reasons for the RO's decision. There can be no harm to the veteran, as the VA has made all efforts to notify and to assist the veteran with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the more general notice of the need for any evidence in the veteran's possession. Thus, the VA has satisfied its "duty to notify" the veteran. Through discussions in correspondence, the rating decisions, the statements of the case, and the supplemental statements of the case, the VA has informed the veteran of the evidence necessary to substantiate his claim. He has been informed of his and the VA's respective responsibilities for providing evidence. Pertinent identified medical records have been obtained. The notice and duty to assist provisions of the law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Moreover, the Court has concluded that the VCAA is not applicable where the appellant was fully notified and aware of the type of evidence required to substantiate his claims and that no additional assistance would aid in further developing his claims. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). When, as here, there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the claimant in substantiating a claim, the VCAA does not require further assistance. Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In this case, the issue turns on the application of the law to facts already in existence. As such, further assistance would not be productive. The VA has undertaken all reasonable efforts to assist the veteran in securing all evidence and has satisfied its duty to assist under the VCAA over many years. The Board finds that both the notice and duty to assist provisions of the law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board will now address the merits of the veteran's claims for service connection. B. Merits The Board will address each of the possible "theories" for an earlier effective date. The effective date of an award of an increased rating is the earliest date as of which it is ascertainable that an increase in disability has occurred if the application for an increased rating is received within one year from such date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2004); Harper v. Brown, 10 Vet. App. 125, 126 (1997). At a minimum, the Board finds that the veteran is entitled to an earlier effective date for the award of a 100 percent rating for schizophrenia as of March 8, 1994. In connection with his April 1994 claim for a TDIU rating, the veteran submitted a March 8, 1994, psychiatric evaluation from Dr. Grau, who described the veteran's poor work history and several lengthy psychiatric hospitalizations. In this case, the March 8, 1994, psychiatric evaluation indicated that the veteran's disability was initially related to memories of Vietnam and a diagnosis of post-traumatic stress disorder (PTSD), but he also indicated that there was probable chronic schizophrenia with partial symptoms. The March 1994 psychiatric evaluation should be considered in light of the subsequent examinations that showed that the veteran was totally disabled due to his service-connected schizophrenia. Thus, it was factually ascertainable that the veteran was totally disabled due to schizophrenia since at least March 8, 1994, which was within one year of the date of receipt of his April 1994 claim for a TDIU rating. However, the Board's inquiry does not cease at this effective date. The veteran maintains that he should have been rated 100 percent disabled due to schizophrenia since separation from service, and he contends that earlier RO rating decisions that failed to assign a 100 percent rating for his schizophrenia were clearly and unmistakably erroneous. The Board thus now turns to the veteran's allegations of CUE in earlier RO decisions. Those RO rating decisions are the following: (1) In July 1970, in part, the RO awarded service connection and a 10 percent rating for anxiety reaction, effective August 30, 1969, the date after separation from service. (2) In May 1971, the RO recharacterized the veteran's service-connected psychiatric disability as "schizophrenia, undifferentiated type." The RO awarded a temporary total (100 percent) rating due to hospitalization effective from September 12, 1970; and a 50 percent rating, effective from December 1, 1970. (3) In December 1973, the RO continued the 50 percent rating for schizophrenia. (4) In January 1976, the RO continued the 50 percent rating for schizophrenia. (5) In June 1976, the RO denied the claim for a TDIU rating. (6) In April 1978, the RO continued the 50 percent rating for schizophrenia. (7) In March 1985, the RO awarded a temporary total rating for the schizophrenia effective from September 1982 to March 1983, based on that VA hospitalization; it then assigned a 50 percent rating as of April 1, 1983. (8) In November 1986, the RO continued the 50 percent rating for schizophrenia. (9) In August 1988, the RO continued the 50 percent rating for schizophrenia (10) In August 1995, the RO granted a 100 percent evaluation for schizophrenic disorder, residual type with depressive features, effective from April 4, 1994. Under the provisions of 38 C.F.R. § 3.105(a) (2004), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). However, if the evidence establishes CUE, the prior decision will be reversed and amended. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). The Court has also stated that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40,43-44 (1993). The veteran contends that the RO failed in its duty to assist by not obtaining over the years various items of evidence (SSA records, treatment records from a fee-basis psychiatrist), in connection with the prior RO rating decisions (that is, the RO rating decisions that preceded the RO decision that ultimately awarded a 100 percent rating for his service-connected schizophrenia as of April 4, 1994). He also contends that the RO failed to assist him by failing to provide adequate examinations that, he contends, would have demonstrated his unemployability or the actual severity of his service-connected schizophrenia. He contends that the RO's repeated failures to assist him in the development of his claims constituted either CUE or, in the alternative, rendered those earlier RO rating decisions non-final. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). He also contends that the prior RO rating decisions did not address various statements regarding the veteran's unemployability. At the time of the Board's December 1999 decision, a failure in the duty to assist was not considered a feasible basis for CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). However, subsequently, the United States Court of Appeals for the Federal Circuit held that certain failures (in that case, the failure to obtain service medical records and to notify the veteran of such failure) constituted "grave procedural error" that in effect vitiated the finality of a prior rating decision. Hayre, supra. However, after the filing of the parties' joint motion with the Court in 2001, the Federal Circuit overruled its decision in Hayre. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In overruling Hayre, the Federal Circuit emphasized in Cook that a purported failure in the duty to assist cannot give rise to CUE; nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. Therefore, in this case, the Board cannot entertain the argument that any failure in the duty to assist by the VA rendered any of the rating decisions at issue clearly and unmistakably erroneous or nonfinal by reason of the commission of a "grave procedural error." Rather, the Board must consider whether any of the RO rating decisions at issue were clearly and unmistakably erroneous on the basis of the three prongs articulated above: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel, supra; Russell, supra. The Board emphasizes that determination regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. In 1992, the Court held that VA had constructive notice of VA-generated documents. See Bell v. Derwinski 2 Vet. App. 611, 613 (1992) (per curiam). However, this holding from Bell is not retroactive prior the date of issuance of Bell. Damrel v. Brown, 6 Vet. App. 242, 246 (1994); see VAOPGPREC 12-95 (May 10, 1995). Thus, a CUE claim cannot be predicated solely on the basis of constructive notice of VA-generated documents prior to the 1991 issuance of Bell. In this particular case, at the time of each of the rating decisions in paragraphs (1) to (9) above, the "constructive-notice" doctrine was not in existence. In fact, the Court itself did not exist. Therefore, the Board may not consider the argument that the VA had constructive notice of any VA-generated documents in connection with the allegation of CUE in the RO rating decisions from 1969 to 1988. Initially, the Board notes that the diagnostic code for evaluating schizophrenia was essentially unchanged from 1970 through most of 1996. Compare 38 C.F.R. § 4.132, Diagnostic Code (DC) 9204 (1970) with 38 C.F.R. § 4.132, DC 9204 (1996). Under this code, a 100 percent rating was warranted for schizophrenia with active psychotic manifestations of such extent, severity, depth, persistence, and bizarreness as to produce complete social and industrial inadaptability. A 70 percent rating was warranted for schizophrenia with lesser symptomatology than the symptoms present for a 100 percent rating that produced considerable impairment of social and industrial adaptability. A 50 percent rating was warranted for schizophrenia producing considerable impairment of social and industrial adaptability. 38 C.F.R. § 4.132, DC 9204 (1970). Also, with regard to claims involving total disability ratings based on individual unemployability, the regulations provided certain special considerations under 38 C.F.R. § 4.16(c) from 1989 to 1996. Under that subsection during those years, the particular numerical criteria necessary for finding a TDIU rating were not applicable when the only compensable service-connected disability was a mental disorder rated 70 percent that precluded a veteran from securing or maintaining gainful employment; in such cases, a 100 percent schedular rating was warranted. However, as this provision did not take effect until 1989, it does not apply in consideration of claims of CUE regarding all of the rating decisions listed in paragraphs (1) through (9) above (that is, 1970 through 1988). The Board will first address the very earliest RO rating decision that the veteran alleges to have been clearly and unmistakably erroneous. The evidence at the time of the July 1970 RO rating decision included an October 1969 VA psychiatric examination and a March 1970 medical certificate. Records of the March to June 1970 psychiatric hospitalization were not fully associated with the claims file; only a March 1970 medical certificate was of record. The evidence of record at the time of the RO's July 1970 rating decision included diagnosis of mild to moderate disability due to anxiety reaction and a 1970 hospitalization (the full records of which were not yet before the RO at the time) for acutely psychotic symptoms. By the time of the RO's May 1971 rating decision (which ultimately awarded a 50 percent rating for schizophrenia after a period of a temporary 100 percent rating due to hospitalization), the evidence of record included partial notes from two VA hospitalizations in 1970, including a November 1970 discharge summary describing severe schizophrenia with some improvement in symptoms on treatment and therapy. By the time of the RO's December 1973 rating decision, a November 1973 VA examination was added to the record. That examination showed moderately severe to severe disability due to schizophrenia, with poor mental concentration and impaired judgment, as well as trembling fingers, bad eye contact, and bizarre behavior. While service connection was in effect for a shell fragment wound with scars from a left leg injury during service in Vietnam during the War, that disability was rated only 10 percent. Thus, the only evidence of record indicated that the veteran's service-connected mental disability was producing bizarre behavior with effects on his employability and daily functioning. The veteran had a demonstrated track record of lengthy hospitalizations; he was unemployed, in part because of the mere length and frequency of his hospitalizations; he had active hallucinations; and of particular note, his behavior was described as bizarre, with various problems involving social adaptability, trembling, and other symptoms. In this case, at this time, had the RO properly applied the diagnostic criteria then in effect, it would have undebatably resulted in a finding of complete social and industrial inadaptability. 38 C.F.R. § 4.132, DC 9204 (1970). The Board concludes that at the time of the RO's December 1973 rating decision, on the basis of the record and law that existed at the time of that decision, the RO did not correctly apply the provisions of the rating schedule for schizophrenia. This error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel, supra; Russell, supra. The Board notes that there was truly very little contrary evidence against the veteran's claim for more compensation at the time of the RO's December 1973 rating decision. The October 1969 VA examination that had noted mild to moderate disability due to anxiety reaction had been superseded by many clear intervening events, specifically, the veteran's multiple hospitalizations in 1970. Thus, the Board underlines that it is not engaging in any selective "reweighing" of the evidence at this time. On the contrary, the Board has concluded that there was a failure to apply the rating criteria in effect at the time of the December 1973 RO rating decision. That this error was undebatable, and that the outcome would have been manifestly changed but for that error. The Court has held that when it is clear, on the face of the decision being assailed for CUE, that the error alleged did in fact occur and would manifestly have changed the outcome of the case, it will reverse, rather than only vacate and remand a Board decision. In those cases, a remand is unwarranted if it would serve only to fulfill a procedural duty that would unnecessarily delay and burden agency resources. Sondel v. West, 13 Vet. App. 213, 221 (1999). The Board reiterates, as it discussed above, that it is not drawing any conclusions with regard to the adequacy of the record at the time of the December 1973 rating decision. The Board is accepting, for purposes of this review, the evidence and the laws as they were at the time of that rating decision. By the time of the next RO decision in January 1976, the evidence had further accumulated, showing moderately severe to severe disability, with various symptoms such as aggressive and violent tendencies, crying spells, auditory and olfactory hallucinations, and socialization difficulties. Accordingly, the Board concludes that RO's December 1973 rating decision was clearly and unmistakably erroneous in not awarding a 100 percent rating for the veteran's service- connected schizophrenia as of the date of the November 1973 VA examination. To that extent, the veteran's appeal is granted, and the Board need not consider the veteran's allegations of CUE in the post-1973 rating decisions. With regard to pre-December 1973 rating actions, as cited above, the Board finds no CUE. The VA examination of October 1969 provides a basis for the RO to have decided at that time the veteran's claim in the manner that it did. This examination, which found a mild to moderate disorder, clearly supports the rating actions of this time period. A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. See Crippen v. Brown, 9 Vet. App. 412 (1996). A disagreement with how the RO evaluated the facts (in this case, the VA examination of October 1969 vs. other reports during this time period) is inadequate to raise the claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). The parties directed that the Board consider whether the veteran might be entitled to an earlier effective date for the assignment of a total rating based on the then-recent Federal Circuit decision in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Court's January 2002 remand granted this joint motion, thus incorporating the elements therein, and the Board is required to comply with the Court's remand. See Stegall v. West, 11 Vet. App. 268 (1998). According to the Federal Circuit, in Roberson it held that the VA must give a sympathetic reading to a veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations." Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Since Moody, VA's General Counsel has issued binding guidance: In deciding whether there was CUE in a final VA decision based upon an allegation that VA failed to recognize an earlier claim, the RO or Board should determine whether, construing the pleadings at issue in the veteran's favor, it is obvious and undebatable that there was an error in the decision and that the error clearly affected the outcome. VAOPGCPREC 4-2004, 7 (May 28, 2004) (superseding VAOPGCPREC 12-2001 (July 6, 2001)); see also 38 C.F.R. § 19.5 (2004) (the Board is bound by, in part, precedent opinions of VA's General Counsel). In this case, aside from the claims that were discussed in the RO's July 1970 and May 1971 rating decisions, there are no other earlier pleadings that could serve as a basis for a claim for a total rating for schizophrenia. In fact, the Board has fully considered whether either of these two decisions were clearly and unmistakably erroneous. Accordingly, no further consideration is necessary under Roberson, Moody, or their progeny and associated VA General Counsel opinions. ORDER An effective date of November 7, 1973, for a 100 percent rating for schizophrenia is granted. ____________________________________________ JOHN J. CROWLEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs