Citation Nr: 0122030	
Decision Date: 08/31/01    Archive Date: 09/06/01

DOCKET NO.  98-10 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

Entitlement to an effective date earlier than October 9, 
1991, for a grant of service connection for schizophrenia.  




REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

William W. Berg, Counsel


INTRODUCTION


The veteran served on active duty from July 1967 to July 1970 
and from March 1976 to March 1978.  

This matter originates from rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Los Angeles, California, that denied service connection for a 
psychiatric disorder.  The veteran appealed this 
determination to the Board of Veterans' Appeals (Board), 
which, in March 1997, remanded the matter to the RO for 
additional development.  Following the additional 
development, the RO in February 1998 granted service 
connection for schizophrenia and assigned a 100 percent 
rating for the disorder, effective from October 9, 1991, the 
date of receipt of his reopened claim for service connection 
for psychiatric disability.  

The veteran disagreed with the effective date assigned and 
perfected an appeal of that issue to the Board.  However, in 
a decision dated in September 1999, the Board denied the 
claim for an earlier effective date.  The Board noted that in 
a supplemental statement of the case issued in November 1998, 
the RO had found that prior rating decisions denying service 
connection for a psychiatric disorder were not the product of 
clear and unmistakable error.  The Board also noted that the 
RO had provided the veteran with the regulation pertaining to 
clear and unmistakable error.  In a November 1998 statement 
in response to the supplemental statement of the case, the 
veteran waived the right to submit any additional evidence 
and requested that his case be forwarded to the Board.  In 
its decision of September 1999, the Board found that it could 
consider the issue of clear and unmistakable error in the 
prior rating decisions without prejudice to the veteran.  
Curry v. Brown, 7 Vet. App. 59, 68 (1994).  However, in the 
course of denying the claim for an earlier effective date, 
the Board found that clear and unmistakable error was not 
shown in rating decisions dated in January 1980, August 1984, 
and January 1988.  

The veteran appealed the Board's decision to the United 
States Court of Appeals for Veterans Claims (Court).  In an 
Order dated in January 2001, the Court vacated the Board's 
September 1999 decision pursuant to a joint motion of the 
parties and remanded the matter to the Board for further 
proceedings consistent with the Order and joint motion.  
Copies of the Order and joint motion have been placed in the 
claims file.  

In March 2001, the Board wrote to the attorney-representative 
and afforded him the opportunity to submit additional 
argument and evidence in support of the veteran's appeal.  
The attorney-representative responded in June 2001 by 
submitting a brief in support of the veteran's appeal.  That 
submission has been associated with the claims file and has 
been considered.  The matter is now before the Board for 
final appellate consideration.  


FINDINGS OF FACT

1.  The veteran's initial claim for service connection for 
psychiatric disability was received on July 9, 1979.  

2.  Service connection for a psychiatric disorder, including 
schizophrenia, was denied by the RO in January 1980 and 
January 1988; although the veteran was informed of these 
determinations, there is no evidence that he was advised of 
his appellate rights.  

3.  The veteran reopened his claim for service connection for 
post-traumatic stress disorder on May 13, 1986; he also 
claimed entitlement to service connection for schizophrenia 
at that time.  

4.  In June 1986, the RO requested that the veteran submit 
new and material evidence to reopen his claim for service 
connection for psychiatric disability, but the veteran did 
not respond to this request.  

5.  At the time that the RO granted service connection for 
schizophrenia in February 1998 and assigned an effective date 
of October 9, 1991, for the grant of service connection, the 
veteran's claim of entitlement to service connection for 
psychiatric disability had been pending since July 9, 1979.  


CONCLUSION OF LAW

An effective date of July 9, 1979, for a grant of service 
connection for schizophrenia is warranted.  38 U.S.C. § 
4005(c) (1976); 38 U.S.C.A. § 5110 (West 1991 & Supp. 2000); 
38 C.F.R. §§ 3.103, 19.114, 19.129, 19.192 (1980); 38 C.F.R. 
§§ 3.104(a), 3.105(a), 3.400 (2000).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran's service medical records for his first period of 
service show that in October 1969, he received treatment for 
anxiety and exhaustion.  He reported that he was anxious 
about going home and had had "no good rest recently - just 
tired out."  Treatment was with Benadryl and rest.  The 
service medical records for this period of service make no 
further reference to any complaints or findings referable to 
a psychiatric disorder.  When examined for separation from 
service in July 1970, complaints or findings of a psychiatric 
abnormality were not noted.  

The service medical records for his second period of active 
duty show that on entry into service, he denied having any 
nervous trouble of any sort and also denied having difficulty 
maintaining a job or having been treated for a mental 
disorder.  The report of the entrance examination does not 
indicate that a psychiatric examination was conducted.  

The report of a July 1977 Medical Evaluation Board (MEB) 
indicates that the veteran was hospitalized in June 1977 with 
a diagnosis of chronic paranoid schizophrenia.  He reported 
having had a "nervous breakdown" during his first period of 
service, although he had not been seen by a medical 
professional.  He stated that after separation from service 
in July 1970, he had difficulty keeping employment due to 
conflicts with employers, and he was found to have been 
hospitalized for psychiatric treatment at VA hospitals twice 
in 1975 with a final diagnosis of paranoid schizophrenia.  He 
had no further psychiatric treatment prior to re-enlisting in 
March 1976.  The MEB noted that he again developed problems a 
few months prior to the June 1977 hospitalization.  

The MEB found that the veteran had a long history of 
suspiciousness and difficulty maintaining working 
relationships, which had resulted in three hospitalizations.  
The members of the MEB also found that although he had not 
been hospitalized until 1975, in their opinion, his illness 
was initially manifested during his first period of service.  
They were also of the opinion that the psychiatric illness 
had occurred in the line of duty.  

The subsequent report of the proceedings of a Physical 
Evaluation Board (PEB) shows that the PEB determined that 
chronic paranoid schizophrenia had existed prior to entry 
into service and that the disorder had not been aggravated by 
service.  The basis for that determination was his history of 
psychiatric hospitalizations prior to his second period of 
service and subsequent to his initial period of service and 
the absence of any treatment or complaints of a psychiatric 
disorder from 1967 to 1970.  The PEB determined that the 
veteran was unfit for duty due to the disability, which had 
not been incurred in the line of duty.  

The veteran initially claimed entitlement to compensation and 
pension benefits for mental illness in July 1979.  He claimed 
that his mental illness began in 1969.  He reported having 
been hospitalized for mental illness in 1974, 1977, and 1979.  
Contact with the VA hospital revealed that he had been 
hospitalized on two occasions in 1975 and from June to August 
1979.  The August 1979 hospital summary shows that he was 
hospitalized for treatment of schizophrenia, but no opinion 
was provided regarding the onset of the disorder.  

A private hospital summary indicates that he was hospitalized 
in April 1979 for psychiatric treatment.  At that time, he 
reported having been hospitalized for mental illness at a VA 
medical center in 1972 and 1974 and at Letterman Army 
Hospital in 1978.  

Rating decisions dated in November 1979 and January 1980, 
which will be discussed in detail below, denied the veteran's 
claims.  

In March 1984, the veteran claimed entitlement to service 
connection for post-traumatic stress disorder (PTSD).  He 
also claimed entitlement to pension benefits based on mental 
illness.  A January 1984 VA hospital summary shows that he 
was involuntarily hospitalized for the treatment of chronic 
paranoid schizophrenia.  The treating physician noted that 
the veteran had a long history of schizophrenia, with many 
prior VA hospital admissions, but he did not provide an 
opinion regarding the onset of the disorder.  A rating 
decision dated August 15, 1984, denied entitlement to service 
connection for PTSD on the basis that the evidence did not 
indicate that the veteran had PTSD.  In a letter dated August 
21, 1984, the RO notified the veteran of that decision and 
provided him with a statement of his appellate rights.  He 
did not appeal.  

The veteran filed a reopened claim for service connection for 
schizophrenia and PTSD in May 1986.  He stated that medical 
evidence in support of his claim could be obtained from the 
VA medical center.  In a letter dated June 26, 1986, he was 
informed that based on a review of the evidence in his claims 
file, service connection for schizophrenia and PTSD had been 
previously denied and that in order to reopen his claim, he 
would have to submit new and material evidence.  He did not 
provide any evidence within a year following the June 1986 
notice.  

On August 21, 1987, the veteran again claimed entitlement to 
compensation and pension benefits for mental illness, with a 
claimed onset of January 1969.  In a January 1987 letter to 
the Board for Correction of Military Records, a copy of which 
was provided to VA, he stated that after serving in Vietnam, 
he began to believe that helicopters were following him and 
that they were out to kill him.  He also stated that during 
his second period of service, he was threatened with an 
Article 15, which was not justified, which caused him to lose 
his nerves and which resulted in his psychiatric 
hospitalization.  He claimed that having served in the Army 
caused his mental problems.  

In support of his claim he submitted a January 1984 VA 
treatment record showing that he continued to receive 
medication for schizophrenia.  

In a January 1988 rating decision, the RO essentially 
determined that the January 1984 treatment record was not new 
and material evidence because it did not provide a diagnosis 
of PTSD or indicate that the schizophrenia was related to 
service.  The veteran was informed of this determination in a 
letter dated in February 1988, but he did not appeal the 
January 1988 decision.  

On October 9, 1991, the veteran filed an application to 
reopen his claim of entitlement to service connection for 
schizophrenia.  He also claimed entitlement to nonservice-
connected pension benefits for schizophrenia.  VA treatment 
records for the period from March 1989 to July 1992 indicate 
that he had a history of chronic paranoid schizophrenia and 
noncompliance with medication since 1972.  

A July 1991 private hospital summary shows that the veteran 
was involuntarily hospitalized with a diagnosis of a 
schizoaffective disorder and that he was known to have many 
previous hospitalizations for mental illness.  

In a rating decision dated in May 1992, the RO determined 
that new and material evidence had not been submitted to 
reopen the claim of entitlement to service connection for 
schizophrenia, but found that the veteran was permanently and 
totally disabled for pension purposes.  The veteran requested 
reconsideration of the May 1992 decision, and in a November 
1993 rating decision, the RO again determined that new and 
material evidence had not been submitted to reopen the 
previously denied claim.  The veteran perfected an appeal of 
this determination to the Board.  

A private hospital summary shows that the veteran was 
hospitalized from June to July 1975 for paranoid 
schizophrenia.  He was discharged from the private hospital 
to be admitted to a VA hospital.  A December 1980 VA 
treatment record indicates that the veteran received 
treatment for psychosis.  

The veteran provided testimony at a September 1996 hearing to 
the effect that his chronic paranoid schizophrenia had its 
onset during his first period of service from 1967 to 1970.  

In conjunction with his appeal of the denial of his service 
connection claim, the veteran submitted copies of his VA 
treatment records for May 1974 through October 1992 showing 
ongoing treatment for chronic schizophrenia.  Those records 
indicate that he was admitted to a VA hospital the second 
time in May 1974 but do not show when his first 
hospitalization occurred.  None of the VA treatment records 
shows that the schizophrenia was related to military service.  

In March 1997, as previously stated, the Board remanded the 
veteran's appeal of the denial of service connection to the 
RO for additional development, including a VA psychiatric 
examination.  The report of the July 1997 examination 
indicates that, based on a review of the evidence in the 
claims file and a telephone contact with the veteran's 
mother, the examining psychiatrist provided an opinion that 
the prodromal symptoms of schizophrenia arose during the 
veteran's first period of service.  The examiner also stated 
that the criteria for a "full diagnosis" of schizophrenia 
were not likely met during the first period of service but 
that it was likely that the stress of military service 
contributed to the onset of the schizophrenia.  

In the February 1998 rating decision, the RO granted service 
connection for paranoid schizophrenia and assigned a 100 
percent rating for the disorder effective from October 9, 
1991.  The RO determined that the veteran had continuously 
prosecuted his claim since that date.  

In his March 1998 notice of disagreement and June 1998 
substantive appeal, the veteran claimed to be entitled to an 
effective date in August 1984 for the grant of service 
connection on the basis that he had continuously prosecuted 
his claim since that date.  In an August 1998 statement, he 
asserted that he was entitled to an effective date in 1974 
because he was then hospitalized.  In the alternative, he 
asserted that he was entitled to an effective date of 
February 1978 because he was separated from his second period 
of service due to schizophrenia.  As a further alternative, 
he claimed to be entitled to an effective date in 1984 on the 
basis that he became entitled to disability benefits from the 
Social Security Administration in 1984.  

During an October 1998 hearing, the veteran testified that 
his effective date should be in 1974, because that is when he 
first filed for service connection.  He also testified that 
his schizophrenia began in January 1970, during his first 
period of service, and that he received treatment for 
paranoia in December 1970.  He stated that he could not 
remember why service connection had been denied in 1974 
because his parents were handling his claim.  He also stated 
that he had functioned pretty well from 1970 to 1976 but that 
during his second period of service, he started having 
problems that resulted in his separation from service.  He 
reported that following his second period of service, he 
claimed entitlement to service connection in 1984.  The 
veteran's representative contends that he is entitled to an 
effective date in July 1979 because the veteran has 
continuously prosecuted his claim since then and because the 
issue of entitlement to service connection for schizophrenia 
was not adjudicated until February 1998, at which time 
service connection was granted.  

Analysis

Despite his contentions, the record shows that the veteran 
initially claimed entitlement to service connection for a 
psychiatric disorder by filing a VA Form 21-526 that was 
received on July 9, 1979.  Although he contends that he, or 
his parents on his behalf, submitted a claim in 1974, the 
evidence of record does not support his assertions.  He 
claimed entitlement to educational benefits beginning in 
February 1970, but his claims for educational benefits cannot 
constitute claims for service connection because, in those 
claims, he never expressed the intent to claim service 
connection for any disability.  See Crawford v. Brown, 5 Vet. 
App. 33, 35 (1993) (in order to constitute an informal claim 
for service connection, the document must identify the 
benefit being sought); 38 C.F.R. § 3.155(a).  Because the 
veteran did not file an original claim of entitlement to 
service connection for a psychiatric disorder until July 
1979, an effective date prior to July 1979 is precluded as a 
matter of law.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; see 
Shields v. Brown, 8 Vet. App. 346, 349-51 (1995) (an earlier 
effective date cannot be granted in the absence of statutory 
authority, which requires the filing of a claim).  

The veteran's original claim for service connection for a 
psychiatric disorder was denied by a rating decision dated 
November 26, 1979.  The original copy of that rating decision 
indicates only that a permanent and total rating for pension 
purposes was being denied, while service connection for a 
psychosis for treatment purposes under the provisions of 
38 U.S.C. § 602 (now § 1702) was being granted.  However, the 
carbon copy of this rating decision contained a pen and ink 
correction, which was and is common with such documents, 
noting:  "His NP Condition EPTS and was not agg."  The 
chairman of the rating board apparently made this notation at 
the time the rating action was entered and indicates that the 
rating board had found that the veteran's neuropsychiatric 
condition existed prior to service and was not aggravated by 
service.  

A notice of the November 1979 rating decision (VA Form 21-
6897), which mentioned only the pension determination, was 
addressed to the veteran at his spouse's address in Oakland, 
California, rather than to his address in Los Angeles, the 
latter address being the one that he had listed as own 
address on his original claim for VA benefits.  The VA Form 
21-6897 contained a statement of the veteran's appellate 
rights.  There is no indication in the claims file that the 
notice was returned by the Postal Service.  On his original 
claim for VA benefits, the veteran indicated that he was then 
an inpatient at the VA hospital, Brentwood, and the date 
stamp indicates that that is where the claim was received.  A 
report of hospitalization shows that he was hospitalized at 
the Brentwood facility from June 29 to August 1, 1979, for 
paranoid schizophrenia.  The November 1979 rating decision 
indicates that he was not represented.  

Because the notification of the November 1979 rating decision 
did not inform the veteran that his claim for service 
connection for a psychiatric disorder was being denied, that 
rating decision was not final with respect to that aspect of 
his claim.  Best v. Brown, 10 Vet. App. 322, 325 (1997) (VA 
notification letter informing veteran that service connection 
was being denied for a personality disorder and adjustment 
disorder not final with respect to claim for service 
connection for generalized anxiety disorder since the latter 
was not mentioned in the notification).  Where the rating 
decision is not final, the claim remains open, and a claim of 
clear and unmistakable error does not lie with respect to it.  
Id.  

However, subsequently received service medical records 
showing treatment beginning on June 17, 1977, were considered 
by the rating board in a rating decision of January 30, 1980, 
that confirmed the determination of November 26, 1979.  The 
issue was listed as "PT/NSC" and the decision stated that 
the cited service medical records showed that the veteran's 
nervous condition, diagnosed as chronic paranoid 
schizophrenia, "existed prior to enlistment & was not 
aggravated thereby."  This medical evidence "does not show 
that the vet's disability preclude[s] him from engaging in 
some form of gainful employment."  The confirmed rating 
decision noted that the veteran had no service representative 
(NSR).  The RO notified him of this determination in a letter 
dated March 6, 1980, which stated in pertinent part:  

The evidence does not indicate that your 
nervous condition was incurred in or 
aggravated by your military service.  In 
fact, it is found that your condition 
existed prior to your service.  

Your physical disabilities are not 
sufficiently disabling to preclude your 
engaging in some form of substantially 
gainful employment.  

Your claim for nonservice-connected 
pension benefits remains denied.  

This letter, which was mailed to his spouse's Oakland 
address, does not indicate whether the veteran was provided 
with a statement of his appellate rights.  The record shows 
that he did not initiate an appeal of this determination.  If 
the veteran received the notice and if the notice contained a 
statement of his appellate rights, the rating decision of 
January 1980 became final.  38 U.S.C. § 4005(c) (1976).  
Moreover, if the rating decision of January 1980 became 
final, any claim for service connection pending as a result 
of the failure of the RO to notify the veteran that his 
service connection claim had been denied in the rating 
decision entered in November 1979 was thereby cut off.  

The statutory obligation to provide a statement of appellate 
rights to a claimant was created by the Veterans' Benefits 
Amendments of 1989, Pub. L. 101-237, § 115(a)(1), 103 Stat. 
2062, 2065-66, and was codified in section 3004(a) of title 
38 of the United States Code (now section 5104(a)).  This 
provision was effective with respect to decisions rendered by 
VA after January 31, 1990.  103 Stat. 2066.  See Mason v. 
Brown, 8 Vet. App. 44, 54 (1995).  

However, throughout the 1980's - that is, at all times 
material to this appeal - the RO had a regulatory obligation 
to provide a claimant with a statement of appellate rights.  
Prior to 1980, the Appeals Regulations of the Board provided 
in 38 C.F.R. § 19.110 (Rule 10) that

[w]hile it is contemplated that the 
agency of original jurisdiction will give 
proper notice of the right to appeal and 
the time limit, failure to notify the 
claimant of his right to such appellate 
review or of the time limit applicable to 
a notice of disagreement or substantive 
appeal will not extend the applicable 
period for taking this action.  

In August 1980, VA proposed a new version of Part 19 (Appeals 
Regulations) that renumbered Rule 10 as Rule 15 (38 C.F.R. §  
19.115) but otherwise left it undisturbed.  45 Fed. Reg. 
56,093, 56,097 (1980) (proposed rule).  See Parham v. West, 
13 Vet. App. 59, 60 (1999).  However, in the subsequent 
promulgation of the final rule, the provisions of § 19.110 
were deleted altogether.  Id.  

The final rule was not promulgated until February 1983, but 
it was made retroactively effective to January 1, 1980.  48 
Fed. Reg. 6961 (1983).  Under the provisions of 38 C.F.R. § 
19.114 that became effective on January 1, 1980:  

The claimant and the representative, if 
any, will be informed of the right to 
initiate an appeal and the time within 
which to do so, the right to a personal 
hearing and the right to representation.  
This information will be included in each 
notification of a determination of 
entitlement or nonentitlement to Veterans 
Administration benefits by the agency of 
original jurisdiction.  (Emphasis added.)  

48 Fed. Reg. 6961, 6972.  

Under the provisions of 38 C.F.R. § 19.192 that became 
effective on January 1, 1980:  

A determination on a claim by the agency 
of original jurisdiction of which the 
claimant is properly notified shall 
become final if an appeal is not 
perfected as prescribed in Rule 29 
([38 C.F.R.] § 19.129).  (Emphasis 
added.)  

48 Fed. Reg. 6961, 6980.  

Thus, the notification of the January 1980 confirmed rating 
decision that the RO sent to the veteran was governed by the 
provisions 38 C.F.R. §§ 19.114 and 19.192 quoted above.  See 
Maryland Casualty Co. v. United States, 251 U.S. 342, 349 
(1920) (valid regulations have the full force and effect of 
statute law if not in conflict with express statutory 
provision).  These provisions also governed the promulgation 
of the rating decision entered in this case in August 1984 
and January 1988.  If the veteran was not provided with 
proper notice of these decisions, including a statement of 
his appellate rights, the determinations did not become final 
and the service connection claim remained opened.  

In his claim for compensation benefits received in March 
1984, the veteran stated:  "I feel that I am suffering from 
post-stress syndrome."  The rating decision of August 15, 
1984, listed the issue only as "SC for Post Traumatic Stress 
Neurosis."  Typed on the rating action in a different font 
was the notation:  "SC for Schizophrenia was previously 
denied."  The rating decision indicated that the veteran was 
not represented.  The record further shows that the 
notification letter of August 21, 1984, informed him that the 
evidence did not establish that service connection was 
warranted for "traumatic stress disorder."  The 
notification contained a statement of the veteran's appellate 
rights on its reverse side.  

The rating decision of August 15, 1984, became final only 
with respect to the issue of entitlement to service 
connection for post-traumatic stress disorder, as this was 
the only disability listed on the veteran's notification.  
See Best v. Brown, 10 Vet. App. at 325.  Service connection 
for post-traumatic stress disorder was the only issue claimed 
at that time and is not in contention here.  The issue is an 
earlier effective date for service connection for 
schizophrenia, which is the sole service-connected 
psychiatric disability.  

In Parham v. West, 13 Vet. App. at 60, the Court stated that 
38 C.F.R. § 3.103(a) did not address the right to receive 
notice of appellate rights until 1990, citing 55 Fed. Reg. 
13,527 (1990).  However, 38 C.F.R. § 3.103(e), which was in 
effect on July 1, 1979, and at all material times thereafter, 
provided as follows:  

Notification of decisions.  The claimant 
will be notified of any decision 
affecting the payment of benefits or 
granting relief.  Notice will include the 
reason for the decision and the date it 
will be effectuated as well as the right 
to a hearing subject to paragraph (c) of 
this section.  The notification will also 
advise the claimant of his right to 
initiate an appeal by filing a [n]otice 
of [d]isagreement which will entitle him 
to a [s]tatement of the case for his 
assistance in perfecting his appeal.  
Further, the notice will advise him of 
the periods in which an appeal must be 
initiated and perfected.  (See Part 19, 
Subpart B of this chapter on appeals.)  

There was therefore a regular procedure in effect at all 
times material to this appeal that required the RO to notify 
a claimant of a decision in his case and of his appellate 
rights.  This provision was set forth in Part 3 of title 38 
of the Code of Federal Regulations, that part that is 
specifically applicable to the agencies of original 
jurisdiction.  See Smith v. Brown, 35 F.3d 1516, 1523 (Fed. 
Cir. 1994) (placement of § 3.105(a) governing claims of clear 
and unmistakable error in Part 3 of title 38 governing AOJ 
adjudication indicates intention of drafters that CUE 
provision did not apply to Board).  

The fact that at all times pertinent to this appeal there 
were two regulatory provisions requiring that a claimant be 
furnished with a statement of appellate rights - § 3.103(e) 
and § 19.114 - suggests that the RO would have been following 
a regular practice in doing so.  As the Court had occasion to 
remark in Woods v. Gober, 14 Vet. App. 214, 220 (2000):

There is a presumption of regularity that 
attaches to the actions of public 
officials.  See INS v. Miranda, 459 U.S. 
14, 18, 74 L. Ed. 2d 12, 103 S. Ct. 281 
(1982); United States v. Chemical 
Foundation, Inc., 272 U.S. 1, 14-15, 71 
L. Ed. 131, 47 S. Ct. 1 (1926); Morris v. 
Sullivan, 283 U.S. App. D.C. 99, 897 F.2d 
553, 560 (D.C. Cir. 1990).  This Court 
has applied the presumption of regularity 
to all manner of VA processes and 
procedures.  See, e.g., Redding v. West, 
13 Vet. App. 512, 515 (2000) (applying 
presumption of regularity as to whether 
RO received veteran's power of attorney 
that was mailed by veteran to correct RO 
address); Baldwin v. West, 13 Vet. App. 
1, 5-6 (1999) (applying presumption of 
regularity as to whether RO examined and 
considered service medical records); 
Schoolman v. West, 12 Vet. App. 307, 310 
(1999) (applying presumption as to 
whether RO sent to claimant the 
application form for dependency and 
indemnity compensation).  In this case, 
that presumption attaches to two actions: 
(1) The Secretary's mailing of notice of 
the 1985 RO decision and his right to 
appeal it; and (2) the VAMC's 
photocopying of the January 1985 VAMC 
clinical record.  

The Court continued:  

The Court has held that there is a 
presumption of regularity that the 
Secretary properly discharged his 
official duties by mailing a copy of a VA 
decision to the last known address of the 
appellant and the appellant's 
representative, if any, on the date that 
the decision was issued.  See Davis 
(Desmond) v. Brown, 7 Vet. App. 298, 300 
(1994); Ashley v. Derwinski, 2 Vet. App. 
62, 64-65, mot. for recons. granted, mot. 
to dismiss denied, 2 Vet. App. 307 
(1992); Chute v. Derwinski, 1 Vet. App. 
352, 353 (1991).  The appellant may rebut 
that presumption by submitting "clear 
evidence to the effect that [VA's] 
'regular' mailing practices are not 
regular or that they were not followed", 
and the "burden then shifts to the 
Secretary to establish that the [VA] 
decision was mailed to the veteran".  
Davis, supra (quoting Ashley, 2 Vet. App. 
at 309); see also Chute, supra.  

14 Vet. App. at 220.  

The joint motion noted that the September 1999 Board decision 
vacated by the Court acknowledged that the RO had failed to 
provide the veteran with notice of the right to appeal but 
determined that the RO was not required to provide such 
notice at that time and that the January 1980 rating decision 
was therefore final in the absence of a timely appeal.  In 
effect, the Board and General Counsel have conceded that the 
veteran did not receive notice of his appellate rights in 
March 1980, which rebuts the presumption of regularity in 
this case.  See Irwin v. Department of Veterans Affairs, 498 
U.S. 89, 92 (1990) (Under our system of representative 
litigation, each party is deemed bound by the acts of his 
lawyer-agent and is considered to have notice of all facts, 
notice of which can be charged upon the attorney); see also 
Link v. Wabash R. Co., 370 U.S. 626, 634 (1962); Smith v. 
Ayer, 101 U.S. 320, 326 (1880).  The Board further notes that 
the failure of the notification letter, either in March 1980 
or February 1988 to contain any indication that an appellate 
rights statement was furnished to the veteran suggests an 
irregularity that likewise would have rebutted the 
presumption.  

In a statement received on May 13, 1986, the veteran 
attempted to reopen his claim for service connection.  He 
stated:  "I wish to reopen my claim for service connection 
for schizophrenia and PTSD; and for NSC pension."  In a 
letter to the veteran dated June 26, 1986, the RO advised him 
as follows:  

On receipt of your recent request to 
reopen your claim for compensation 
benefits, we have carefully reviewed all 
evidence in your claims folder.  

Service connection has previously been 
denied for your schizophrenia and in 
order for us to reconsider compensation 
benefits for this condition, it will be 
necessary for you to submit evidence that 
has not been previously considered to 
show that this condition was incurred in 
or aggravated by your military service 
and that it has existed continuously 
since the time of its alleged inception 
in service.  

Our records also indicate that service 
connection has previously been denied for 
post traumatic stress neurosis.  To 
reconsider your claim for this condition, 
it will also be necessary for you to 
submit new and material evidence that has 
not been previously considered to support 
your claim that the condition was 
incurred in or aggravated by your 
military service.  

To be eligible for nonservice-connected 
disability pension, the law requires that 
a veteran be both permanently and totally 
disabled.  You did not indicate on your 
correspondence to us which conditions you 
have that you feel permanently and 
totally disabled you.  If you wish to 
pursue the claim, it will be necessary 
for you to submit this evidence to us.  

The record shows that the veteran did not submit any evidence 
within one year of the request contained in the June 1986 
letter.  However, as the joint motion noted, there is no 
requirement that a claimant submit new and material evidence 
on an original claim.  See 38 U.S.C.A. § 5108 (West 1991) 
(new and material evidence required to reopen claim that has 
been disallowed); 38 U.S.C. § 4005(c) (1976); 38 C.F.R. § 
3.104(a) (1980) (decision of a duly constituted rating agency 
is final and not subject to revision on the same factual 
basis).  Because of the failure in March 1980 to notify the 
veteran of his appellate rights, the July 1979 original 
service connection claim remained open, and the RO's letter 
of June 1986 did not cut off his rights with respect to his 
still open original claim.  

The veteran filed yet another claim for service connection 
for psychiatric disability on August 21, 1987, but a 
confirmed rating decision dated January 22, 1988, continued 
to deny service connection for a psychosis and PTSD.  The 
rating board noted that a VA hospital report dated in January 
1984 had been previously considered and that outpatient 
reports showed only current treatment and contained no 
diagnosis of PTSD or evidence relating his psychiatric 
condition to service.  The rating board found that new and 
material evidence had not been submitted to reopen the 
previously denied claim.  The RO informed the veteran of this 
decision in a letter dated February 8, 1988, a copy of which 
was furnished to the American Red Cross, the veteran's 
representative at that time.  The letter states in pertinent 
part:  

We have carefully considered your claim 
for disability benefits based on all the 
evidence of record, including outpatient 
treatment records of January 3, 1984.  

Our records show that we notified you on 
June 26, 1986, that your claim to 
establish service connection for your 
nervous condition was disallowed.  Since 
the evidence you submitted was not new 
and material, no change in our previous 
decision is warranted.  

The notification letter does not indicate whether the veteran 
was provided with a statement of his appellate rights.  
However, the General Counsel effectively conceded in the 
joint motion that no such notice of appellate rights was 
provided to the veteran at that time.  The General Counsel 
noted that "it appears that the appellant was not provided 
with information regarding his right to appeal that [January 
1988] decision," and that "because it appears that the 
appellant was not provided with notice of his right to 
appeal, it likewise would appear that the January 1988 RO 
decision is not final."  As with the January 1980 rating 
determination, the RO's apparent failure to provide the 
veteran with information regarding his appellate rights in 
the notification letter of February 1988 meant that the 
January 1988 rating decision failed to cut off the pending 
original claim for service connection.  

Thus, when the veteran again claimed entitlement to service 
connection for a psychiatric disorder on October 9, 1991, the 
effective date eventually established by the RO for the grant 
of service connection for schizophrenia, he had an original 
claim for service connection for psychiatric disability still 
pending.  Although the original claim for service connection 
did not specifically mention schizophrenia, this was the 
diagnosis established by the MEB and PEB, as well as that 
found when the veteran was hospitalized by VA both before and 
after his second period of active duty.  Thus, the date 
entitlement arose coincided with the date of receipt of his 
original claim.  See 38 C.F.R. § 3.400(b)(2)(i).  It follows 
that an effective date of July 9, 1979, for a grant of 
service connection for schizophrenia is warranted.


ORDER

An effective date of July 9, 1979, for a grant of service 
connection for schizophrenia is granted.  



		
	Mark D. Hindin
	Member, Board of Veterans' Appeals