Citation Nr: 1312157	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  10-40 738	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Waco, Texas


THE ISSUE

Entitlement to an effective date earlier than December 30, 2008, for the award of service connection for paranoid schizophrenia.

(The issue of whether the appointment of a fiduciary to manage the Veteran's VA benefits was proper is the subject of a separate Board decision.)


REPRESENTATION

Appellant represented by:	Douglas J. Rosinski, Attorney at Law


ATTORNEY FOR THE BOARD

R. Kessel, Counsel



INTRODUCTION

The Veteran had active military service from February 1972 to May 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.


FINDINGS OF FACT

1.  The Veteran submitted a claim of service connection for a mental condition on August 22, 1979.

2.  By a November 1979 rating decision, the RO denied entitlement to service connection for a mental condition, characterized as schizoid personality with slow intelligence.  The Veteran did not appeal the decision, and new and material evidence was not received within one year of notification of the decision.

3.  On December 30, 2008, the Veteran submitted a claim of service connection for paranoid schizophrenia.

4.  In August 2009, the RO obtained the Veteran's service personnel file.

5.  By a December 2009 rating decision, the RO granted service connection for paranoid schizophrenia, based in part on the Veteran's service personnel records.


CONCLUSIONS OF LAW

The criteria for an effective date of August 22, 1979, but no earlier, for the award of service connection for paranoid schizophrenia have been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(c), 3.400 (2012). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate certain claims such as those for compensation, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5103; 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).

The Veteran's claim was for service connection, which was granted, and he now appeals the assigned effective date.  Given the initiating claim was granted, no further notice under the VCAA is necessary.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment and personnel records have been obtained.  VA treatment records and records from the Social Security Administration have also been obtained.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  Moreover, the outcome of the issue on appeal turns on when a claim was filed and when records were received.  No further assistance to develop evidence is required.

II. Analysis

On August 22, 1979, the Veteran submitted an application for benefits, which included a claim of service connection for a mental condition.  By a November 1979 rating decision, the RO denied entitlement to service connection for a mental condition, characterized as schizoid personality with slow intelligence.  Later that month, the Veteran was notified of the decision and informed of his appellate rights.  He did not appeal the decision.  Additionally, new and material evidence was not received within one year of notification of the decision.  Thus, the November 1979 RO decision is final.  38 U.S.C. § 4005(c) (1976); 38 C.F.R. § 19.118, 19.153 (1979); 38 C.F.R. § 3.156(b) (2012).

On December 30, 2008, the Veteran submitted another application for benefits, which included a claim of service connection for paranoid schizophrenia.  In developing the claim, the RO requested the Veteran's official service personnel file.  The records were obtained in August 2009.  Although the Veteran's service treatment records were obtained in connection with his original claim in 1979, his personnel records were not obtained at that time.

In June 2009, the Veteran underwent VA psychiatric examination in connection with the claim.  A VA psychologist provided an Axis I diagnosis of schizophrenia, undifferentiated type.  In recording the Veteran's history, the examiner noted that the Veteran did fairly well in service up until the end.  At that point, the Veteran had been given more responsibility and he would get confused.  He did not follow directions well and he was tardy.  The Veteran had trouble performing his duties and he could not keep up.  He reported that he was disciplined a number of times because he left his post and left the ammunition room unlocked.  The examiner noted that this was apparently out of character for the Veteran and, additionally, this may have been an indication of onset of psychotic symptoms, although the examiner did not have the records to review to verify this possibility.  Later in the June 2009 report, the examiner stated that there were signs of some prodromal symptoms in the Veteran's childhood, but the onset of actual psychosis appeared to be later.  The examiner could not comment on whether this was a service-connected condition because he had not reviewed the claims file.

The VA examiner was subsequently able to review the claims file and he provided an addendum report in September 2009.  After reviewing the claims file, including service medical records and early treatment records, the examiner gave the opinion that it is at least as likely as not that the Veteran's current schizophrenia, undifferentiated type, is etiologically related to the Veteran's in-service inability to follow orders which were attributed to low intelligence and his 1979 diagnosis of "schizoid personality with rather slow intelligence."

By the December 2009 rating decision, the RO awarded service connection for paranoid schizophrenia based primarily on the VA examiner's September 2009 opinion.  The RO set the effective date for the award of service connection as December 30, 2008-the date of receipt of the claim to reopen.

The Veteran disagrees with the assigned effective date of the award of service connection and he contends that the effective date should be earlier-to the time period when the original claim was denied in 1979.

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012).  For service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service.  38 C.F.R. § 3.400(b)(2).

Because the November 1979 RO decision is final, the claim by which the Veteran was granted service connection for paranoid schizophrenia, and which led to this appeal, is generally considered a claim to reopen a previously denied claim based on the receipt of new and material evidence.  See 38 C.F.R. §§ 3.156(a), 3.160(d), (e) (2012).  The United States Court of Appeals for Veterans Claims has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen.  See Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008); see also 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r).

Under this analysis, the effective date for the award of service connection can be no earlier than December 30, 2008-the date of receipt of the claim to reopen.  However, 38 C.F.R. § 3.156(c) provides an exception to this rule.  At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.  Additionally, when an award is based all or in part on the service records, the effective date is the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim.  See 38 C.F.R. § 3.156(c)(4).

In the Veteran's case, the Board finds that the service personnel records that were associated with the claims file in August 2009 existed at the time of the prior denial in November 1979.  A review of the service personnel records reveals that the Veteran experienced problems following orders towards the end of his service in 1976.  He was cited for disobeying orders and not properly keeping the arms door locked.  These were the exact circumstances recorded in the initial June 2009 report when the VA examiner thought that the Veteran's psychosis may have had its onset during service.  After reviewing the claims file, including the service personnel records, the examiner confirmed the opinion in the September 2009 addendum.  Accordingly, the service personnel records that were obtained in conjunction with the claim are relevant.  Moreover, the award of service connection for paranoid schizophrenia was at least based in part on the Veteran's service personnel records as the records formed the underlying basis of the VA examiner's opinion on which the RO primarily relied.  Accordingly, the proper effective date of the award of service connection is the date entitlement arose or the date VA received the previously decided claim.  See 38 C.F.R. § 3.156(c)(4).  

Based on the VA examiner's opinion, entitlement essentially arose during service as that is the time period when the Veteran's psychosis and schizophrenia had its onset.  The date VA received the previously decided claim of service connection for a mental condition was August 22, 1979, which was more than one year after the Veteran's separation from service.  As the date of claim is later than the date entitlement arose, the date of claim is the proper effective date.  Therefore, the Board concludes that the criteria for an effective date of August 22, 1979, but no earlier, for the award of service connection for paranoid schizophrenia have been met.  See 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.156(c)(4), 3.400.


ORDER

Subject to the law and regulations governing payment of monetary benefits, an effective date of August 22, 1979, but no earlier, for the award of service connection for paranoid schizophrenia, is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs