Citation Nr: 1242925 Decision Date: 12/17/12 Archive Date: 12/27/12 DOCKET NO. 09-05 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date earlier than April 18, 2006, for the grant of service connection for anxiety and schizoaffective disorders, to include whether the July 1977 rating decision that denied service connection for a nervous condition or the July 1999 rating decision that granted entitlement to non service-connected disability pension due to anxiety and schizoaffective disorders, contained clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to December 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veteran's Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Appellant's claims. Review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran initially filed a claim of entitlement to service connection for a nervous condition in March 1977, over one year after his separation from service. 2. In an unappealed July 1977 rating decision, the RO denied entitlement to service connection for a nervous condition on the bases that the Veteran's in-service diagnosis of a character and behavior disorder is not an injury or disability within the meaning of applicable legislation, and it had not been shown that anxiety neurosis, diagnosed during a June 1977 VA examination, was incurred in or aggravated by service or related to the character and behavior disorder diagnosed during service. 3. In an unappealed July 1999 rating decision, the RO granted entitlement to non service-connected disability pension, effective January 25, 1999; the RO did not adjudicate a claim for compensation for a psychiatric disorder at that time. 4. Neither the July 11, 1977 nor the July 9, 1999 rating decisions involved undebatable error which, had it not been made, would have manifestly changed the outcome of those decisions. CONCLUSIONS OF LAW 1. The July 11, 1977 rating decision that denied entitlement to service connection for a nervous disorder and the July 9, 1999 rating decision that granted entitlement to non service-connected disability pension are final. 38 U.S.C.A. §7105 (West 2002 and Supp. 2012); 38 C.F.R. §§ 20.200 (2012). 2. CUE has not been found in the July 11, 1977 rating decision that denied service connection for a nervous disorder or the July 9, 1999 rating decision that granted entitlement to non service-connected disability pension, and the criteria for an effective date earlier than April 18, 2006 for the establishment of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 5109A, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the Veteran's claims file, his Virtual VA file, and his and his attorney's multiple contentions. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5103A, 5107, 5126 (West 2002), is not applicable to a claim for revision or reversal of a final decision on the basis of CUE. See Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc). As to the non-CUE aspect of his claim, the Board notes that this appeal arises from the Veteran's disagreement with the effective date assigned following the granting of service connection. So the claim, as it arose in its initial context, has been substantiated - indeed granted. Therefore, additional VCAA notice is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, the Board finds that the Veteran's attorney has demonstrated actual knowledge of how to substantiate the claim. The Board otherwise finds that all necessary development of this downstream earlier-effective-date claim has been accomplished and, therefore, that appellate review of this claim may proceed without prejudicing the Veteran. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 their results would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell v. Principi, 3 Vet. App. 310 (1992), the Court set forth a three-pronged test for determining when there is CUE present in a prior decision. These are (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., 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 CUE must be based on the record and law that existed a the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. at 313-14. See also Bustos v. West, 179 F. 3d 1378, 1380-81 (Fed. Cir. 1999) (to prove CUE, a claimant must show that an error was outcome-determinative, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined and elaborated on the test set forth in Russell. In Fugo the Court stated: 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...If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo, 6 Vet. App. at 43-44 (emphases added). Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). The Court has also held that allegations that previous adjudications have improperly weighed or evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, the Court has held that the VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Significantly, with respect to the third prong of the test, in Berger v. Brown, 10 Vet. App. 166 (1997), the Court held that "opinions from this Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid clear and unmistakable error claim. Id. at 170. The Court reaffirmed this principle in Brewer v. West, 11 Vet. App. 228, 234 (1998) and Smith v. West, 11 Vet. App. 134, 137 (1998). In Brewer, the Court held that, although judicial decisions made during the course of an appeal are retroactively applicable to pending appeals, for purposes of adjudicating claims of CUE in a prior VA decision, "new" judicial interpretations of the law that were not issued at the time of the prior VA decision are not applicable. Id. at 234. In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213 F.3d 1372 (2000). I. July 1977 Rating Decision With regard to the 1977 rating decision, the Veteran and his attorney assert that the July 1977 rating decision that denied entitlement to service connection for a nervous condition contains CUE because the RO failed to provide sufficient reasons and bases for that decision in that there is no indication that the presumption of soundness was considered or applied. The attorney asserts that VA was bound to award service connection in the absence of clear and unmistakable evidence that the Veteran's mental condition existed prior to his enlistment in military service and that it clearly and unmistakably was not aggravated therein. At the time of the July 1977 rating decision, the evidence of record included the Veteran's service treatment records, VA examination reports, and lay statements of the Veteran and his mother. Review of the Veteran's service treatment records show that a January 1973 enlistment examination was negative for any complaints, findings, or diagnosis pertaining to a psychiatric disorder. In February 1971, he requested a referral to the mental hygiene clinic for "problems." In April 1973, he was prescribed pain and anti-anxiety medications when he requested tranquilizers due to a two day history of diarrhea and bad nerves. Upon requesting to see a psychiatrist for continued symptoms in May 1973, he reported two pre-service episodes of "nervous breakdowns" for which he was prescribed medication. He experienced difficulty since enlistment in that he failed physical testing during basic and was placed in "STC." He expressed very vague complaints of diarrhea associated with anxiety or stressful situations. He felt like he could not make it and wanted out. The diagnostic impression in May 1973 was a character and behavior disorder. Later in May 1973 he complained of memory loss, fatigue, and anorexia. A September 1973 dental history noted that he was taking prescribed medication for "nerves." In October 1973 he was highly anxious and complained of blackouts and diarrhea due to nervousness. He was said to have problems of anxiety and adjustment. A psychiatric evaluation was recommended for chronic anxiety problems with a need for frequent use of tranquilizers and problems adjusting. During an October 1973 psychiatric evaluation the Veteran related problems of confusion and anxiety centered around his assigned duties and tasks. Anxiety was manifested by confusion as to the duties he was to perform and troubles adjusting to his job situation. He was counseled to more clearly understand his military obligations and returned to duty. In May 1974 he experienced low blood pressure, tiredness and he tended to fall asleep on his feet. In July 1974 he complained of personal problems. Upon separation examination in December 1974, the Veteran reported histories of frequent trouble sleeping and depression or excessive worry, however, he was psychiatrically normal on clinical evaluation. In a March 1977 statement, the Veteran's mother indicated that he had been extremely nervous and frustrated since discharge, particularly when attempting to secure employment, which she believed could be due to hearing loss which seemed to worsen during service. The Veteran underwent a VA psychiatric examination in June 1977. He reportedly had noticed progressive feelings of nervousness and apprehension since his father died in 1968. He reportedly received treatment at the mental hygiene clinic during service, however, as the claims folder was not available for review, the exact nature of any in-service treatment and the nature of the Veteran's discharge was a little obscure. He remained unemployed since his discharge from service. He denied any particular depression or suicidal ideation and there was no history of hallucinations or delusions. He oriented and cooperative during examination but rather verbose and apprehensive. He was of average intelligence consistent with his educational background. His abstracting ability was fair, his memory was good, and there was no evidence of looseness of association or depersonalization. He appeared to be competent from a legal standpoint. The examiner diagnosed anxiety neurosis. On this record in a July 1977 rating decision the RO denied service connection for the in-service diagnosis of a character and behavior disorder because it was not considered to be a disability for VA compensation purposes. Service connection was also denied for anxiety because the RO determined that there were two pre-service episodes of a nervous condition treated by a physician and there were no complaints nor any indication of a any mental disorder at the time of discharge. Additionally, there was no evidence that anxiety was related to the character and behavior disorder diagnosed during service. The Veteran was provided notice of this decision in a July 19, 1977 letter and he did not appeal. The criteria in effect at the time of the July 1977 rating decision provided that service connection is warranted when the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1977). 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 a later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1977). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." Id. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Regarding preservice disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional confirmatory evidence is necessary. 38 C.F.R. § 3.303(c) (1977). Consequently, with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Id. Similarly, manifestation of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Id. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Id. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. Id. The Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 C.F.R. § 3.304(b); 38 U.S.C. § 3.11; Pub. Law 89-358 (1977). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Determinations should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. Id. Generally, a preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a); 38 U.S.C. § 353 (1977). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Id. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. In this case, the Board is unable to find that any failure of the RO to apply or discuss the presumption of soundness constitutes CUE in the July 1977 rating decision. Initially, the Board notes that rating decisions were not required to set forth in detail the factual bases for their decisions before the 1990 effective date of 28 U.S.C. § 5104(b). Notwithstanding, however, the Veteran's DD Form 214 shows that he was enlisted into military service on February 13, 1973. On February 27, 1973, only two weeks after enlistment, he requested to go to the mental hygiene clinic for "problems." His DD Form 214 further shows that from the date of enlistment until August 21, 1973, the Veteran's military occupational specialty was listed as "mechanic." From August 22, 1973, until he was discharged on December 31, 1974, however, his military occupational specialty was listed as "none." Service treatment records show that on May 1, 1973, the Veteran reported two preservice histories of "nervous breakdowns" for which he was treated for by a physician with medication. He reportedly had experienced difficulty since he was enlisted in to military service in that he failed his physical training test during basic training and was placed into "STC." He stated that he felt like he could not make it in service and indicated that he wanted out. Although there were no psychiatric complaints, findings, or diagnosis noted during the Veteran's January 1973 enlistment examination or at the time that he was accepted and enrolled for service, the Board reiterates that regulation at the time of the 1977 rating decision provided that as to preservice disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional confirmatory evidence is necessary. Consequently, with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. 38 C.F.R. § 3.303(c) (1977). The aforementioned facts combined with notation in the 1977 rating decision of two preservice episodes of "nervous breakdowns" and that there was no indication of a mental disorder during separation examination implies a finding by the RO that a mental disorder clearly and unmistakably preexisted military service and the rating decision implicitly determined that the presumption of soundness had been rebutted by clear and unmistakable evidence. The Board notes that the RO's conclusions are particularly supported by the fact that the Veteran at that time was open and consistent in reporting significant pre-service psychiatric problems, having acknowledged two breakdowns prior to service to both military examiners and a VA examiner. Also of significance is that at no point during his 1977 claim did the Veteran put forth any lay assertions that his disorder underwent any worsening while on active duty. In fact, the only description offered by the Veteran as to his history at that time was a report of having experienced progressive feelings of nervousness and apprehension since 1968. The adjudicators findings are otherwise consistent with the lack of any objective findings of any psychiatric abnormalities at the time of the Veteran's December 1974 separation examination combined with repeated notations during service of the Veteran's difficulty adjusting to military service, and the October 1973 notation that problems of confusion and anxiety centered around confusion at to the various military duties and tasks assigned to him, was not reflective of a permanent worsening of the preexisting psychiatric condition. Such determination would have been buttressed by the lack of any evidence of post-service mental health related treatment, complaints, findings, or diagnosis. While there was a statement from the Veteran's mother which reported a history of frustration since discharge, particularly when attempting to secure employment, she related such frustration to the Veteran's perceived hearing loss. As noted, at the time of the June 1977 psychiatry examination, the Veteran dated progressive feelings of nervousness and apprehension to his father's death prior to his enlistment in to military service and he denied any particular depression or suicidal ideation. While it was noted that he received treatment at the mental hygiene clinic during service, the Veteran did not report or otherwise suggest that there was any permanent worsening of his claimed nervous condition during or by his military service. The aforementioned facts combined with notation in the 1977 rating decision that there was no indication of a mental disorder during separation examination supports the reasonableness of the RO's conclusion that a mental disorder clearly and unmistakably was not aggravated by military service. Given this record, the Board concludes that the attorney's argument of error on the part of the RO ultimately amounts to no more than a disagreement with how the facts were weighed. This does not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313 (1992). Service connection for anxiety and schizoaffective disorders was ultimately granted in an August 2007 rating decision on the basis that new and material evidence consisting of October 2006 and January 2007 opinions of a VA psychiatrist and psychologist who opined that the Veteran's anxiety disorder was initially shown during military service, or alternatively, preexisted military service and was permanently worsened by his military service. To the extent that it could be argued that there is any difference in the 1977 and the August 2007 rating decisions regarding whether the presumption of soundness had been rebutted constitutes difference of opinion, not CUE on the part of the RO. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In light of the foregoing, the Board finds that the rating decision of July 11, 1977 was a reasonable exercise of rating judgment, adequately supported by the evidence then of record and the statutory and regulatory provisions extant at that time were correctly applied. Therefore, on this record, the Board concludes that a valid claim of CUE has not been presented with regard to the 1977 rating decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). II. July 1999 Rating Decision Alternatively, the Veteran and his attorney contend that the July 1999 rating decision that granted entitlement to non service-connected disability pension due to anxiety and schizoaffective disorders contains CUE by failing to adjudicate a claim for service-connected disability compensation. They claim that such assertion is buttressed by notation in the June 1999 VA examination reports that the Veteran related his mental problems at that time to military service. In essence, they argue that the RO's failure to adjudicate the issue of service connection results in a pending and unadjudicated claim for service connection since the date the January 1999 application was received, or alternatively, that the June 1999 examination reports should be construed as an informal claim for service-connected compensation for anxiety and schizoaffective disorders. Review of the record shows that on January 25, 1999, an Application for VA Compensation or Pension (VA Form 21-526) was received from the Veteran and his representative at that time. The application form was accompanied by a statement from the representative that listed the evidence being submitted for appropriate action, to specifically include "VAF 21-526 APPLICATION FOR PENSION (Chronic depression)." Review of the completed application form shows that portions of the application pertaining to filing for compensation were left blank and crossed out while portions of the application pertaining to filing a claim for pension were completed. The nature of the sickness, disease or injuries for which the claim was made and the date it began was "chronic depression 1980." It further noted that the Veteran was not employed and his date of last employment was May 1980. A remark stated that pertaining to question 9B (Have you previously filed a claim for any benefit with VA?), the Veteran filed for compensation but claimed that he never received any response from VA. Additional evidence of record at the time of the July 1999 rating decision included a DD Form 215 dated May 1979 and associated with the claims file in July 1985, a July 1985 application to reopen a previously denied claim of service connection for "nerves," a July 1985 confirmed rating decision that appears to have denied service-connected compensation and non service-connected disability pension for the same, a June 1985 notice letter from the Social Security Administration (SSA) that a claim for disability benefits due to a nervous condition had been denied, VA inpatient and outpatient treatment records dating through December 1998, a January 1999 SSA award of supplemental security income letter, June 1999 VA mental disorders and general medical examination reports, and lay statements of the Veteran. In the July 1985 claim to reopen, the Veteran indicated that he had a "nerves" disability since 1973 for which he was treated during service and on an inpatient basis at a VA facility in 1985. He stated that he last worked in his occupation as a cab driver in May 1984. The June 1985 letter from the SSA shows that the Veteran's filed a clam for Social Security disability benefits due to a nervous condition that began in June 1978. His claim was denied because there was no objective evidence that the Veteran was unable to work. A DD Form 215, dated in May 1979 and associated with the claims file in July 1985, showed that the Veteran's DD Form 214 had been corrected to show that he was discharged under honorable conditions due to failure to meet acceptable standards for continued military service. His separation code was "3C," which is assigned when an individual served over four months of service and did not meet the pay grade requirement of Chapter 2 or when an individual has been denied enlistment under Qualitative Screening Processes pursuant to Ch. 4 AR 600-200. His reenlistment code was "RE-3," which is for individuals who are not qualified for continued Army service but the disqualification is waiverable. VA treatment records dating through December 1998 show that in April 1985, a history of severe depression was noted and the Veteran was described as having schizoid or borderline personality organization. He subsequently indicated that he had been depressed with trouble sleeping since 8 months prior. Following nearly one month of inpatient treatment, a May 1985 VA discharge note showed an admitting and final Axis I diagnoses of adult adjustment disorder with mixed emotional mood and an Axis II diagnosis of schizoid personality disorder. An October 1998 VA treatment note shows that the Veteran was working as a security guard and he was receiving supplemental security income from the SSA. He reported that he had been under the care of a psychiatrist for depression and hospitalized for the same. During a November 1998 VA mental health consultation for depression, the Veteran reported that he had been receiving private psychiatric treatment from Dr. H since 13 years prior. He had been hearing voices for the past several years. Provisional diagnoses at that time was recurrent major depressive disorder, anxiety disorder not otherwise specified with panic attacks, and psychotic disorder not otherwise specified. In December 1998, a VA psychiatry note showed the Veteran's report that he developed depression and anxiety symptoms at work during military service and he was unable to cope with work-related stress as a mechanic. He was assessed with schizoaffective disorder, depressed type and chronic by history, and anxiety disorder not otherwise specified. In January 1999, a SSA award letter indicated that monthly supplemental security income had been awarded. During a June 1999 general medical examination the examiner indicated that review of a 1977 audiological examination showed that the Veteran indicated that he was discharged from service due to hearing loss and anxiety. Review of his VA treatment records showed a long history of schizoaffective disorder, depression and anxiety neurosis with treatment for the same. During the examination the Veteran described his hearing as normal but indicated that it would cut out causing him to only be able to hear what he described as auditory hallucinations. During a June 1999 VA mental disorders examination, the Veteran stated that he was depressed, could not think straight, he could not do anything right, and he heard several voices at once and clapping - like applause. He stated that he was very confused most of the time. He dated the onset of his psychiatric problems to approximately the time of his military service and stated that his symptoms at the time of examination were the same or similar to what they were during military service. It was noted that he received an early discharge due to his failure to meet acceptable standards for continued service. His intelligence was not formally tested, however, based on history, educational skills and current language skills, it was estimated to be below average. The examiner diagnosed schizoaffective disorder, depressed type and chronic by history and anxiety disorder not otherwise specified by history. He experienced severe impairment in the social arena with no friends and poor interpersonal skills. Occupationally, he was unable to hold a job. In the July 1999 rating decision, the RO granted entitlement to non service-connected pension benefits, effective the date the application for benefits was received, as it had been shown that the Veteran was unable to secure and follow a substantially gainful occupation due to schizoaffective and anxiety disorders. The Veteran was provided notice of this decision in a letter dated July 16, 1999, and he did not appeal. Law and regulations in effect at the time of the July 1999 rating decision stated that a "[c]laim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (1999). If it is received within 1 year from the date it was sent, it will be considered filed as of the date of receipt of the informal claim. Id. When a claim has been filed which meets the requirements of § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c) (1999). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151 (1999). Generally, the effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.157(a) (1999). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. Id. Acceptance of a report of examination or treatment as a claim for increase or as a claim to reopen is subject to the requirements of § 3.114 with respect to action on VA initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. Id. A report of examination or hospitalization by VA will be accepted as an informal claim to reopen in the following situations: (1) once a formal claim for pension or compensation has been allowed or disallowed for the reason that service-connected disability is not compensable in degree; (2) in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay; (3) a previously denied pension claim for the reason that it was not permanently and totally disabling. 38 C.F.R. § 3.157(b) (1999). In this case, the Board is unable to find that any failure of the RO to construe the January 1999 application as a claim for service-connected compensation benefits or construe either June 1999 VA examination report as an informal claim for compensation constitutes CUE in the July 1999 rating decision. The United States Court of Veterans Appeals (Court) held that VA was not obligated to consider a veteran's pension application as a claim for disability compensation. See Stewart v. Brown, 10 Vet. App. 15 (1999). In Stewart, the Court stated that the Secretary is not automatically required to treat every compensation claim as also being a pension claim or vice versa. Id. at 18. Rather, the Secretary has to exercise his discretion under the regulation in accordance with the contents of the application and the evidence in support of it. See Willis v. Brown, 6 Vet. App. 433, 435 (1994) (the operative word "may," in the regulation clearly indicates discretion). Upon review of the January 1999 application, there is no intent on the part of the Veteran or his representative to request entitlement to service connection for a psychiatric disorder. To the contrary, the representative's statement that accompanied the claim showed an intent to claim pension benefits. This conclusion is further supported by the fact that portions of the application pertaining to the filing for compensation were left blank and crossed out, and there was nothing appearing in the application that would suggest to VA that it was reviewing a claim for entitlement to service-connected compensation benefits. The application contained no statement by the appellant or his representative offering a link between depression and service, and in fact, it was noted that the claimed psychiatric disorder, depression, had its onset in 1980, approximately 6 years after the Veteran was discharged from service. In summary, there was nothing in the January 1999 application which VA could construe as "evidencing a belief in entitlement" to compensation for depression. 38 C.F.R. § 3.1(p). Regarding the remark in the January 1999 application that the Veteran had previously applied for VA compensation and never received a response from VA, review of the January 1999 application shows that such remark was in response to a prior question in the application as to whether he had previously filed a claim for any benefit with VA, which he had. At the time that the January 1999 claim was received, however, VA compensation or pension benefits were most recently denied in a "confirmed rating decision," dated September 13, 1985. That rating decision explained that recent treatment reports showed diagnoses of an adult adjustment disorder with mixed emotional mood and depression, and anxiety symptoms were shown to be in remission in remission. The RO found that a permanent disability had not been shown. The Veteran was notified of that decision in a letter dated September 19, 1985, which was mailed to his correct address of record, and he did not file an appeal. In short, the January 1999 application form overwhelmingly and even explicitly states that the Veteran's intent at that time was to file for non service-connected disability pension benefits rather than service-connected disability compensation. The Board finds that the only remark in the claim referencing compensation, which by its terms, explicitly pertained to question 9B regarding whether the Veteran had previously filed a claim for any benefit, does not rise to an expression of any intent to file for or belief of entitlement to, service-connected disability compensation. Accordingly, the Board finds that there was no evidence in or submitted with the January 1999 application which VA could construe as a claim for service-connected disability compensation. As such, VA was not obligated to consider the January 1999 application for pension as one for disability compensation. See Kluttz v. Brown, 7 Vet. App. 304, 308 (1994) (In an appeal for dependency and indemnity compensation, benefits, the Court held that "had the appellant completed the application correctly . . ., VA would have been on notice . . . that she was eligible for reinstatement of death benefits. Under these circumstances, VA could not possibly have done more."). The Board also acknowledges the attorney's assertion that a liberalizing interpretation should be used in the determination as to whether the January 1999 application form demonstrated an intent to claim service-connected disability compensation. In November 2010, he asserted that the above argument is even more compelling in light of the nature of the Veteran's mental disability. However, the record shows that the Veteran had previously sought, and had been denied, entitlement to service connection for other medical and psychiatric disorders, thereby evidencing at least some understanding of the application process for disability compensation. Accordingly, the Board finds this argument to be unpersuasive. The Veteran's attorney has also asserted that the June 1999 VA examination reports should be construed as an informal claim for service-connected compensation for a psychiatric disorder because the Veteran related his psychiatric complaints to service or the time that he was in service. The Board reiterates, however, that 38 C.F.R. § 3.157(b) specifically limited the use of medical examination reports as informal claims to circumstances where ' formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree.' Here, at the time of the July 1999 rating decision, service connection had been denied. Regardless, the Board notes that Court has been generally reluctant to interpret hospitalization or examination records as informal claims for entitlement to service connection. In a case involving medical records which a veteran wished to have construed as an informal claim for secondary service connection, the Court looked for additional supporting evidence of the veteran's intent to seek secondary service connection, holding that the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric condition. "While the Board must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant . . .. The appellant must have asserted the claim expressly or impliedly." Brannon v. West, 12 Vet. App. 32 (1998). To the extent that the June 1999 examination reports could represent an affirmative action or intention on his part, the submission alone, without further explanation on his part, cannot be construed as an intention to seek further review of his service connection claim. The simple submission of the examination reports do not indicate an expressed or implied claim involving anxiety or schizoaffective disorders, particularly as such examination reports were obtained by the RO in connection with a non service-connected pension claim and obtainment of those examination reports were not the result of any action on the part of the Veteran. Thus, the mere addition of the record to the file cannot be construed as an intention on the part of the Veteran to reopen the previously-denied claim. Thus, the June 1999 medical examination reports are not viewed as an informal claim to reopen because there is no apparent intention on the part of the Veteran connected to these records. This categorization is important because such status would have conferred upon the RO a statutory responsibility to take further action on the claim. Accordingly, the Board does not find that CUE was committed by the RO in the July 1999 rating decision for failure to address the issue of service-connected disability compensation or for failure to construe the June 1999 examination reports as an informal claim for service connection. In the absence of the kind of error of fact or law which would compel the conclusion that the result would have been manifestly different but for the error, the Board does not find that there was not CUE in either the July 1977 or July 1999 rating decisions. The Board has considered the argument that the Veteran should be awarded service connection for schizoaffective and anxiety disorders effective March 1977, as this was the date that he submitted his original claim for service connection. However, as noted, the primary basis of awarding an effective date under applicable law or regulations based on a claim to reopen after a final disallowance shall be the date of the new claim or the date entitlement arose, whichever is later. In this case, entitlement to service connection for a nervous condition was denied in final, unappealed rating decisions dated in July 1977, September 1985, and July 1999. Prior to receipt of the Veteran's April 2006 claim for compensation or pension benefits, there is no record of an application to reopen a claim for service connection for any psychiatric condition. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that April 18, 2006, is the correct date for the grant of service connection for schizoaffective and anxiety disorders. While the Veteran's attorney has alleged that he is entitled to an earlier effective date for his award of service connection, there is no basis under the governing legal criteria, absent a finding of CUE in either the 1977 or 1999 rating decisions, to establish that he is legally entitled to an earlier effective date. As CUE as not been found in either of those decisions, the appeal must be denied. ORDER Entitlement to an effective date prior to April 18, 2006, for the establishment of service connection for anxiety and schizoaffective disorders, to include as based on CUE in the July 1977 and July 1999 rating decisions, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs