Citation Nr: 0515885	
Decision Date: 06/13/05    Archive Date: 06/21/05

DOCKET NO.  03-17 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Entitlement to an effective date of April 6, 1988, rather 
than February 18, 1994, for a grant of service connection for 
paranoid schizophrenia.


REPRESENTATION

Appellant represented by:	Theodore C. Jarvi, Attorney at 
Law


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The veteran served on active duty from August 1981 to 
December 1982.    

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a rating decision dated in January 1998 by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri.

This case was the subject of a September 2004 Order of the 
Court of Appeals for Veterans Claims (Court), granting a 
Joint Motion for Remand of the parties dated in September 
2004, and vacating the Board's April 2004 decision in this 
matter.  The below action is directed in view of the Court's 
Order.


FINDINGS OF FACT

1.  The RO denied an April 6, 1988, original claim for 
service connection for schizophrenia in an August 1988 RO 
rating decision, in which it was determined that his 
discharge under other than honorable conditions constituted a 
bar to payment of VA benefits.

2.  New service medical records were received from the 
service department in December 1996; these service medical 
records constituted evidence which was not previously before 
agency decisionmakers and which bore directly and 
substantially upon the specific matter under consideration.  
This evidence was neither cumulative nor redundant, and by 
itself or in connection with evidence previously assembled 
was so significant that it needed to be considered in order 
to fairly decide the merits of the claim.  

3.  Newly received medical evidence and VA and private 
medical opinions demonstrate that, in light of the newly 
received service medical records, it is at least as likely as 
not the veteran has paranoid schizophrenia that began during 
service. 

4.  Newly received medical evidence and VA and private 
medical opinions demonstrate that, in light of the newly 
received service medical records, it is at least as likely as 
not the veteran was not sane at the time he committed the 
offenses that resulted in his other than honorable discharge.


CONCLUSIONS OF LAW

1.  Service medical records received from the service 
department in December 1996 constituted new and material 
evidence.  38 C.F.R. § 3.156 (2001) (as effective for claims 
filed prior to August 29, 2001).

2.  Reconsideration of the RO's August 1988 decision denying 
the veteran's claim for service connection for paranoid 
schizophrenia is required.  38 C.F.R. § 3.156(c) (2004).

3.  The criteria for service connection for service 
connection for paranoid schizophrenia are met based on the 
receipt of new and material evidence in the form of service 
medical records received from the service department in 
December 1996 and medical opinions premised upon or 
corroborated by findings in those service medical records.  
38 U.S.C.A. §§ 1110, 5107 (West  2002); 38 C.F.R. § 3.303 
(2004).

4.  The proper effective date for service connection for 
schizophrenia is April 6, 1988.  38 C.F.R. 
§§ 3.156(c), 3.400(b)(2), 3.400(q)(2) (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

There has been a significant change in the law during the 
pendency of this appeal.  On November 9, 2000, the President 
signed into law the Veterans Claims Assistance Act of 2000 
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).  This law 
redefines the obligations of VA with respect to the duty to 
assist and includes an enhanced duty to notify a claimant as 
to the information and evidence necessary to substantiate a 
claim for VA benefits.  

First, VA has a duty to notify the appellant of any 
information and evidence needed to substantiate and complete 
a claim.  38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 
3.159(b) (2004).  Second, VA has a duty to assist the 
appellant in obtaining evidence necessary to substantiate a 
claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) 
(2004).  

As discussed in detail below, sufficient evidence is of 
record to grant the full benefit sought on appeal.  
Therefore, no further notice or development is needed with 
respect to this appeal.

Factual Background

On April 6, 1988, the RO received an application from the 
veteran for service connection for paranoid schizophrenia.

In August 1988, the RO denied the veteran's claim on the 
basis that his discharge from service in December 1982 was 
issued under conditions which bar that payment of VA 
payments.  His DD Form 214 indicated that he had been 
discharged under other than honorable conditions.  

The RO received a notice of disagreement form the veteran in 
August 1989, and the RO issued a Statement of the Case in 
August 1989.

The RO next heard from the veteran in a written statement 
received on February 18, 1994, in which he contended that the 
RO should "disregard my misconduct due to his limited mental 
capacity during service."  He submitted a private medical 
opinion in October 1994. supporting his claim that his 
paranoid schizophrenia began during service.  The private 
physician further opined that the veteran did not have 
insight to his actions and could not distinguish right and 
wrong during the period during service resulting in his 
discharge under other than honorable conditions.  The RO 
denied the veteran's claim in March 1995.  The RO received 
the veteran's notice of disagreement in August 1996, and a 
Statement of the Case was issued that same month.  A VA Form 
9 was received in October 1995, and the case was thereafter 
forwarded to the Board for appellate consideration.  

In October 1996, the Board remanded this case to the RO for, 
among other things, a search for the veteran's service 
medical records.  The case was returned to the RO and two 
service department envelopes of service medical records were 
received in December 1996.  

At a December 1996 VA examination, a VA examiner found that 
the veteran had schizophreniform disorder or schizophrenia 
during service.  The report also includes a rather conclusory 
opinion indicating that the veteran was not insane during 
service.   

At a March 1997 VA examination, the examiner noted a 1982 
service medical record of psychiatric treatment including 
findings of "poor reality checking," "poor interpersonal 
relationships," and "very limited ability to integrate 
affective stimuli."  Based on his review of the service 
medical records, the examiner opined that the veteran was not 
sane at the time of his misconduct during service, and that 
the veteran's schizophrenia was in its initial phase during 
his period of active service.

In October 1997, the RO issued a rating decision that the 
veteran was insane at the time he committed the offenses that 
resulted in the other than honorable discharge.

In January 1998, the RO granted service connection for 
paranoid schizophrenia, and assigned an effective of date 
February 18, 1994, the date of the veteran's application to 
reopen his claim for service connection for schizophrenia.

As indicated at numbered paragraph 13 of the typewritten 
statement attached to his VA Form 9 received in May 2003, the 
veteran seeks an effective date of April 6, 1988, for service 
connection for schizophrenia.
 
Law and Regulations

The provisions of 38 C.F.R. § 3.156(a) were recently changed, 
but only for claims filed on or after August 29, 2001.  66 
Fed. Reg. 45620 (Aug. 29, 2001) (codified at 38 C.F.R. § 
3.156 (2004)).  The veteran's application to reopen his claim 
was filed prior to August 29, 2001; consequently, the version 
of § 3.156(a) in effect before August 29, 2001, applies.  The 
definition of new and material evidence set forth therein 
reads as follows:

New and material evidence means evidence not 
previously submitted to agency decisionmakers 
which bears directly and substantially upon the 
specific matter under consideration, which is 
neither cumulative nor redundant, and which by 
itself or in connection with evidence previously 
assembled is so significant that it must be 
considered in order to fairly decide the merits of 
the claim.

38 C.F.R. § 3.156(a) (2001).

38 C.F.R. § 3.156(c) provides in pertinent part as follows:

Where...new and material evidence consists of a 
supplemental report from the service department, 
received before or after the decision has become 
final, the former decision will be reconsidered by 
the adjudicating agency of original jurisdiction.  
This comprehends official service department 
records which presumably have been misplaced and 
have not been located and forwarded to the 
Department of Veterans Affairs...

(Emphasis added.)

Generally, a discharge from service under other than 
honorable conditions, issued because of willful and 
persistent misconduct, will be considered to have been issued 
under dishonorable conditions, and bars entitlement to 
veteran's benefits. 38 C.F.R. § 3.12(d)(4).  However, 
entitlement is not barred if it is established that, at the 
time of the commission of the offense leading to a person's 
discharge, the person was insane. 38 U.S.C.A. § 5303(b); 38 
C.F.R. § 3.12(b); 38 C.F.R. § 3.354 (2003) (defining insanity 
for purposes of determining cause of discharge from service).

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1131.  With chronic disease shown as 
such in service so as to permit a finding of service 
connection, subsequent manifestations of the same chronic 
disease at any later date, however remote, are service 
connected, unless clearly attributable to intercurrent 
causes.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity of 
symptomatology after discharge is required to support a claim 
of service connection.  Service connection may be granted for 
any disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

The effective date for an award of disability compensation 
based on an original claim for direct service connection is 
the day following separation from active service or the date 
entitlement arose if a claim is received within one year 
after separation from service; otherwise, the proper 
effective date is the date of receipt of claim or the date 
entitlement arose, whichever is later.  38 C.F.R. 
§ 3.400(b)(2).  

The statute further provides, in pertinent part, that when 
new and material evidence consists of service department 
records, the date should agree with evaluation (since it is 
considered these records were lost or mislaid) or date of 
receipt of claim on which prior evaluation was made, 
whichever is later, subject to rules on original claims filed 
within one year after separation from service.  38 C.F.R. § 
3.400(q)(2).

The Court has also made it plain that the date of the filing 
of a claim is controlling in determinations as to effective 
dates.  See Lalonde v. West, 12 Vet. App. 377, 380 (1999) 
(citing Hazan v. Gober, 10 Vet. App. 511 (1997); Washington 
v. Gober, 10 Vet. App. 391 (1997); and Wright v. Gober, 10 
Vet. App. 343 (1997).  In Lalonde, the Court stated that the 
effective date of an award of service connection is not based 
upon the date of the earliest medical evidence demonstrating 
entitlement, but on the date that the application upon which 
service connection was eventually awarded was filed with VA.  
Id.

The standard of proof to be applied in decisions on claims 
for veterans' benefits is set forth in 38 U.S.C.A. § 5107 
(West 2002).  A veteran is entitled to the benefit of the 
doubt when there is an approximate balance of positive and 
negative evidence.  See 38 C.F.R. § 3.102.  When a veteran 
seeks benefits and the evidence is in relative equipoise, the 
veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  The preponderance of the evidence must be against 
the claim for benefits to be denied.  See Alemany v. Brown, 9 
Vet. App. 518 (1996).  

Analysis

In December 1996, the RO received the veteran's service 
medical records, and in March 1997, based on a review of the 
veteran's service medical records, a VA examiner found that 
the veteran was not sane during the time of the conduct that 
resulted in his discharge under other than honorable 
conditions.  In this way, the newly received service medical 
records bore directly and substantially on the matter of the 
previously unestablished fact that the veteran was insane at 
the time of the in-service conduct that led to his discharge, 
and is therefore new and material evidence received in a 
supplemental report from the service department.  See 38 
C.F.R. § 3.156(c).

As of March 1997, new and material evidence had clearly been 
received in a supplemental report from the service 
department, but without reconsideration of the prior August 
1988 decision denying service connection for schizophrenia.  
Such a reconsideration of the August 1988 decision is now 
required by 38 C.F.R. § 3.156(c).  

This reconsideration is not to be limited to consideration of 
the evidence associated with the claims file at the time of 
the prior adjudication in August 1988, as it is to include by 
regulatory direction service department records received 
after the date of the August 1988 decision.  See 38 C.F.R. 
§ 3.156(c).  Nor must VA consider whether there is CUE in the 
August 1988 decision; rather, this is a reconsideration of a 
prior rating decision.  Thus, current laws and regulations 
apply.  See, e.g., VAOPGCPREC 70-91 (reconsideration of Board 
decision is based on the complete record as it exists as of 
the date of reconsideration of the decision, and is based on 
current legal standards).  In VAOPGCPREC 70-91, the VA Office 
of General Counsel based its holdings on the general rule is 
that agencies must apply the law in effect at the time it 
renders its decision, even if that law had changed during the 
course of the proceeding.  Thorpe v. Housing Auth. of the 
City of Durham, 393 U.S. 268, 281 (1969).  This rule is based 
on a presumption that favors retroactive application of new 
laws, unless there is statutory direction or legislative 
history to the contrary or where to do so would result in 
manifest injustice.  Bradley v. School Board of the City of 
Richmond, 416 U.S. 696, 711 (1974).

Accordingly, the standard of proof to be applied in 
reconsidering the RO's August 1988 unfavorable decision is 
that currently set forth in 38 U.S.C.A. § 5107 (West 2002).  
Under this standard, the veteran is entitled to the benefit 
of the doubt when there is an approximate balance of positive 
and negative evidence.  See 38 C.F.R. § 3.102.  When a 
veteran seeks benefits and the evidence is in relative 
equipoise, the veteran prevails.  See Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).  The preponderance of the evidence must 
be against the claim for benefits to be denied.  See Alemany 
v. Brown, 9 Vet. App. 518 (1996).  

Reconsidering the August 1988 RO rating decision in light of 
the newly received evidence, the Board finds, as the RO did 
in December 1997 and January 1998, that service medical 
records as interpreted and construed in a medically competent 
March 1997 VA examiner's opinion reveal that the veteran was 
not sane at the time of the conduct leading to his discharge 
under other than honorable conditions, and that his 
schizophrenia began during active service.  Because he was 
not sane, he is not barred from payment of VA benefits as a 
result of his discharge from service under other than 
honorable conditions.  Further, as his schizophrenia at least 
as likely as not began during service, service connection for 
schizophrenia is warranted.  38 U.S.C.A. §§ 1131, 5107(a).  

Having now reconsidered the RO's August 1988 denial of 
service connection for schizophrenia and finding that service 
connection is warranted in light of the newly received 
service medical records and the March 1997 VA medical opinion 
premised on those service medical records, as well as other 
private and VA medical opinions premised upon or corroborated 
by the newly received service medical records, the Board now 
turns to the matter on appeal, the application of the proper 
effective date for service connection for paranoid 
schizophrenia.

The veteran's claim corresponding to the above-reconsidered 
August 1988 RO rating decision was an original claim for 
service connection received on April 6, 1988.  The effective 
date for an award of disability compensation based on an 
original claim for direct service connection is the day 
following separation from active service or the date 
entitlement arose if a claim is received within one year 
after separation from service; otherwise, the proper 
effective date is the date of receipt of claim or the date 
entitlement arose, whichever is later.  38 C.F.R. 
§ 3.400(b)(2).  As the veteran's initial application for 
service connection for schizophrenia was not received within 
one year of his discharge from service in December 1982, an 
effective date of April 6, 1988, the date his original claim 
for service connection for schizophrenia was received, is 
warranted.  38 C.F.R. §§ 3.156(c), 3.400(b)(2), 3.400(q)(2) 
(2004).  As noted above, this is the effective date 
specifically sought by the veteran at paragraph 13 of his 
typewritten statement attached to his VA Form 9 received in 
May 2003.  Thus, the Board considers this to be a full grant 
of the benefit sought on appeal.

The Board acknowledges that the initial theory upon which the 
veteran sought an effective date of April 6, 1988, for 
service connection for schizophrenia, was that of "clear and 
unmistakable error" (CUE) in the August 1988 RO rating 
decision.  In its now-vacated April 2004 decision, the Board 
found that there was no CUE in the August 1988 RO rating 
decision.  In now adjudicating this claim in accordance with 
the September 2004 Order of the Court of Appeals for Veterans 
Claims and Joint Motion for Remand, the Board has granted the 
benefit sought on appeal under a much more lenient standard 
of proof (that of "equipoise" or "benefit of the doubt") 
on reconsideration of the August 1988 RO rating decision.  
Because the full benefit sought on appeal has been granted, 
there is no prejudice to the veteran's claim in the Board 
deciding this case without initial consideration by the RO in 
the first instance under the much more favorable standard of 
proof.  Bernard v. Brown, 4 Vet. App. 384 (1993).





ORDER

An effective date of April 6, 1988, for service connection 
for paranoid schizophrenia, is granted.  



	                        
____________________________________________
	R. F. WILLIAMS
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs