Citation Nr: 0210194	
Decision Date: 08/21/02    Archive Date: 08/29/02

DOCKET NO.  96-23 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUE

Entitlement to an effective date for payment of 50 percent 
disability compensation benefits for service-connected 
schizophreniform psychosis prior to August 1, 1994.  


REPRESENTATION

Appellant represented by:	A. Dale Smith, Esq.


ATTORNEY FOR THE BOARD

J. Fussell, Counsel




INTRODUCTION

The veteran had active service from May 1974 to March 1975.  

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a decision of the Department of Veterans 
Affairs (VA) Regional Office in New Orleans, Louisiana, which 
denied the veteran's claim for an effective date for payment 
of compensation for service-connected schizophreniform 
psychosis, rated 50 percent disabling, prior to August 1, 
1994.  A November 1997 Board decision denying that claim was 
appealed to and vacated by the United States Court of Appeals 
for Veterans Claims (Court) which also remanded that claim to 
the Board pursuant to a Joint Motion for Remand.  The Board 
remanded the case in January 2000.  

An April 2000 RO decision confirmed and continued the 100 
percent schedular rating for service-connected chronic 
undifferentiated schizophrenia (formerly classified as 
schizophreniform psychosis) and granted eligibility for 
Dependents' Educational Assistance under 38 U.S.C. chapter 
35.  The veteran was adjudicated to be competent and 
entitlement to special monthly compensation (SMC) based on 
aid and attendance or by reason of being housebound was 
denied.  Correspondence from the veteran's attorney in July 
and October 2000 disagreed with the April 2000 RO decision.  
A November 2000 statement of the case (SOC) addressed issues 
of the evaluation of the service-connected schizophrenia and 
entitlement to SMC.  

VA Form 9 was received in January 2001 in which the veteran's 
attorney stated that the November 2000 SOC was "non-
responsive" to the issue remanded by the Board to the RO.  
He further stated that he represented the veteran only on the 
issue of entitlement to an effective date for payment of 50 
percent disability compensation benefits for service-
connected schizophreniform psychosis prior to August 1, 1994, 
and that with respect to the claims addressed in the November 
2000 SOC "I had nothing to do with that claim."  

Accordingly, the VA Form 9 received in January 2000 did not 
perfect an appeal from the April 2000 rating decision.  If 
the veteran disagrees with this and asserts that an appeal 
was perfected, he must first raise this issue with the RO 
inasmuch as it is a separately appealable issue.  Generally 
see 38 C.F.R. §§ 19.34, 20.203 (2001).  


FINDINGS OF FACT

1.  The veteran had active service from May 1974 to March 24, 
1975, at which time he was transferred to the Temporary 
Disability Retired List.  

2.  A January 1975 Medical Board Report reflects that the 
veteran's service adjustment had been marginal.  A Central 
Physical Evaluation Board determined in February 1975 that 
his schizophreniform psychosis was incurred inservice and 
that he was unfit for service.  

2.  A June 1975 rating action granted service connection for 
schizophreniform psychosis and assigned a 50 rating, 
effective March 25, 1975.  

3.  In 1978 VA was provided with an original and a copy of 
letters from the veteran to the then First Lady inquiring 
about his military retirement benefits.  

4.  In August 1978, the RO was informed that the veteran had 
been removed from the Temporary Disability Retired List 
effective July 21, 1978, and awarded disability severance 
pay.

5.  By a letter dated September 13, 1978, the veteran was 
informed that the RO had been notified that he had been 
removed from the Temporary Disability Retired List effective 
July 21, 1978.  The veteran was told that if he wished to 
reopen his claim for compensation, he was to execute and 
return VA Form 21-4138, Statement in Support of Claim.  

6.  The veteran did not execute and return the VA Form 21-
4138 and did not forward such form to VA until he notified 
the RO in July 1994, that he wished to receive his 
compensation for his 50 percent disability evaluation.  

7.  There is no clear evidence that the veteran did not 
received the September 1978 RO letter and there is no medical 
evidence that the veteran was incompetent in 1978.  


CONCLUSION OF LAW

An effective date for payment of 50 percent disability 
compensation benefits for service-connected schizophreniform 
psychosis prior to August 1, 1994, is not warranted.  38 
U.S.C.A. § 5110 (West 1991); 38 C.F.R. §§ 3.155, 3.157, 
3.400, 3.401 (2001).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

During this appeal the Veterans Claims Assistance Act of 2000 
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was 
signed into law.  It is applicable to claims pending at the 
time of its enactment, including the case presently before 
the Board.  See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 
(1991).  It essentially eliminates the requirement that a 
claimant submit evidence of a well-grounded claim, and 
provides that VA will assist a claimant in obtaining evidence 
necessary to substantiate a claim but is not required to 
provide assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  It also includes new notification provisions.  
Specifically, it requires VA to notify the claimant and the 
claimant's representative, if any, of any information, and 
any medical or lay evidence, not previously provided to the 
Secretary that is necessary to substantiate the claim.  As 
part of the notice, VA is to specifically inform the claimant 
and the claimant's representative, if any, of which portion, 
if any, of the evidence is to be provided by the claimant and 
which part, if any, VA will attempt to obtain on behalf of 
the claimant.

The case was remanded in January 2000 for the RO to locate 
any "uniform service" medical records and to readjudicate 
the claim with consideration given to 38 C.F.R. § 3.157(b)(1) 
and the decision of the Court in Norris v. West, 12 Vet. 
App. 413 (1999).  The RO made numerous attempts to locate the 
indicate records (as described in the March 2002 supplemental 
SOC (SSOC)).  However, in January 2002, before that 
development could be completed, the veteran requested that 
his case be adjudicated on the basis of the evidence of 
record.  

The record reflects that the veteran has been informed of the 
requirements of the VCAA in the March 2002 SSOC, which also 
set forth the provisions of 38 C.F.R. § 3.157 (2001).  

In view of the veteran's request that the case be decided on 
the evidence of record, there is no further action to be 
undertaken to comply with the provisions of the VCAA.  

Background

The veteran's DD 214 reflects that he had active service from 
May 1974 to March 24, 1975, at which time he was transferred 
to the Temporary Disability Retired List (TRDL).  

A January 1975 Medical Board Report reflects that the veteran 
was first seen during service for psychiatric treatment in 
September 1974.  Prior to the development of schizophrenic 
symptoms his service adjustment had been marginal.  He was 
referred to the Central Physical Evaluation Board which, in 
February 1975, determined that his schizophreniform psychosis 
was incurred inservice and that he was unfit for service 
because of this disability.  

The veteran was transferred to the Temporary Disability 
Retired List (TDRL) effective March 24, 1975.  

The veteran filed VA Form 21-526e in February 1975.  In a 
letter later that month the RO acknowledged receipt of his 
claim and informed him that because he was still on active 
duty no further action could be taken until he was separated 
from active service.  The RO would hold his claim and when he 
was completely separated from service he was to furnish a 
copy of his discharge papers and a copy of this letter so 
that his claim could be processed.  

A rating action in June 1975 granted service connection for 
schizophreniform psychosis and a 50 percent disability rating 
was assigned, effective March 25, 1975. 

After additional service clinical records were received, the 
RO notified the veteran in December 1975 of a November 1975 
rating which made no change in the previous determination as 
to his service-connected psychiatric disorder.  

In the veteran's handwritten letter, date stamped as received 
by VA in June 1978, addressed to the First Lady, he stated 
that "Med-Board findings" would soon be in Washington and 
he wanted those records reviewed as to whether he had "the 
right to live & get aid from the Service" and he wished to 
"keep my check coming" because he was in financial 
hardship.  

In response, an RO letter to the veteran, dated May 27, 1978 
(but referencing receipt of the June 1978 letter from the 
veteran) and bearing a stamp date on the back of July 3, 
1978, stated:

Your [VA] records are located in the New Orleans 
[RO].  I am told that no action is pending.  It 
seems, therefore, that the medical board findings 
you mentioned in your letter to President Carter 
pertain to your disability retirement from the 
Navy.  That means that this office cannot be of 
assistance.

In June 1978 a photocopy of an undated handwritten letter to 
the then First Lady the veteran indicated that he wished to 
"keep my retirement" because he was in financial hardship.  
Attached to that letter was a copy of the veteran's "Release 
from Active Duty and Transfer to the Disability Retired List 
on Board Separating Activity" reflecting that the veteran 
had been placed on TDRL on March 24, 1975.  

In a June 1978 letter from the Chairman of the Board of 
Veterans' Appeals, stating that a letter from the veteran to 
the First Lady had been forwarded to his office, it was noted 
that the veteran had indicated that his "medical board 
findings would soon be in Washington."  Further information 
was requested and he was asked to explain whether he was a 
veteran, the branch of service he was in, his service number, 
and his VA claim number.  This was executed and returned to 
the Board in July 1978.  That letter was forwarded to the RO 
in August 1978.  

The VA was informed by the Department of the Navy Finance 
Center in August 1978, that on July 21, 1978, the veteran had 
been removed from the Temporary Disability Retired List and 
discharged from service with severance pay. 

In September 1978, the Director of the New Orleans VARO 
acknowledged receipt of the veteran's letter to the First 
Lady regarding his military retired pay.  The veteran was 
informed that since this was not a matter within the 
jurisdiction of the VARO Director, the Director was 
forwarding his letter to the Department of the Navy.  The 
veteran was also informed that the VARO had received notice 
that he had been removed from TDRL and discharged from 
service by reason of physical disability with severance pay 
effective July 21, 1978.  He was advised that, "If you would 
like to reopen your claim for compensation, please advise us 
on the enclosed Statement in Support of Claim form." 

In VA Form 21-4138, Statement in Support of Claim, received 
on July 29, 1994, the veteran inquired as to the status of 
his disability benefits.  He stated that he had once been in 
receipt of retired pay, and had then received severance pay 
from the military but had been dropped from the retirement 
rolls.  He noted, however, that the VA thereafter failed to 
institute payment of his disability payments.  

On VA psychiatric examination in November 1994 it was stated 
that if the veteran were awarded any funds, he was considered 
capable of managing them.  

A January 1995 rating confirmed the 50 percent disability 
evaluation for schizophreniform psychosis, effective from 
August 1, 1994.

In February 1995 the veteran wrote that he had not received 
military retirement pay since 1975.  

Law and Regulations

As to military retirement pay, 38 C.F.R. § 3.750(a) provides 
that

Except as provided in paragraphs (c) and (d) of 
this section and Sec. 3.751, any person entitled 
to receive retirement pay based on service as a 
member of the Armed Forces [] may not receive 
such pay concurrently with benefits payable 
under laws administered by [VA].  The term 
``retirement pay'' includes retired pay and 
retainer pay.   

With respect to electing between VA compensation and military 
retirement pay, 38 C.F.R. § 3.750(b) provides: 

A veteran entitled to retirement pay or 
compensation may elect which of the benefits he 
or she desires to receive.  An election of 
retirement pay does not bar him or her from 
making a subsequent election of the other 
benefit to which he or she is entitled.  An 
election filed within 1 year from the date of 
notification of [VA] entitlement will be 
considered as ``timely filed'' for the purpose 
of Sec. 3.401(e)(1).  If the veteran is 
incompetent the 1-year period will begin on the 
date notification is sent to the next friend or 
fiduciary.  In initial determinations, elections 
may be applied retroactively if the claimant was 
not advised of his or her right of election and 
the effect thereof. 

With respect to waivers, 38 C.F.R. § 3.750(c) provides that: 

A person specified in paragraph (a) of this 
section may receive compensation upon filing 
with the service department concerned a waiver 
of so much of his (or her) retirement pay as is 
equal in amount to the compensation to which he 
(or she) is entitled.  In the absence of a 
specific statement to the contrary, the filing 
of an application for compensation by a veteran 
entitled to retirement pay constitutes such a 
waiver.  

38 C.F.R. § 3.751(2001) provides that: 

Retired Regular and Reserve officers and 
enlisted personnel are not entitled to statutory 
awards of disability compensation from [VA] in 
addition to their retirement pay.  However, 
under Sec. 3.750(c), eligible persons may waive 
an amount equal to the basic disability 
compensation and any statutory award otherwise 
payable by [VA]. 

With respect to effective dates, 38 C.F.R. § 3.400 (2001) 
provides, generally, that: 

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 the later.  

38 C.F.R. § 3.400(o)(1) (2001) provides that: 

(o) Increases (38 U.S.C. 5110(a) and 5110(b)(2), 
Pub. L. 94-71, 89 Stat. 395; Secs. 3.109, 3.156, 
3.157)--(1) General.  Except as provided in 
paragraph (o)(2) of this section and Sec. 
3.401(b), date of receipt of claim or date 
entitlement arose, whichever is later.  A 
retroactive increase or additional benefit will 
not be awarded after basic entitlement has been 
terminated, such as by severance of service 
connection.

38 C.F.R. § 3.400(o)(2) provides that, with respect to 
disability compensation, the effective date will be: 

Earliest date as of which it is factually 
ascertainable that an increase in disability had 
occurred if claim is received within 1 year from 
such date otherwise, date of receipt of claim.

38 C.F.R. § 3.400(r) provides that the effective date for 
reopened claims will be: 

Date of receipt of claim or date entitlement 
arose, whichever is later, except as provided in 
Sec. 20.1304(b)(1) of this chapter.

38 C.F.R. § 3.401(e)(1) (2001) provides that as to awards of 
pension or compensation, when a veteran is in receipt of 
military retirement pay that wards of pension or compensation 
to or for a veteran will be effective from the "[d]ate of 
entitlement if [an election is] timely filed.  Subject to 
prior payments of retirement pay."  38 C.F.R. § 3.401(e)(3) 
(2001) provides that, as to reelection, the effective date is 
the "[d]ay the reelection is received by [VA]."  

A claim is a formal or informal communication in writing that 
requests a determination of entitlement or evidencing a 
belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) 
(2001).  An informal claim is defined as a communication or 
action indicating an intent to apply for one or more benefits 
under the laws administered by VA.  38 C.F.R. § 3.155 (2001).  

38 C.F.R. § 3.157(a) (2001) provides that: 

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 the later.  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.  Acceptance of a report of 
examination or treatment as a claim for increase 
or to reopen is subject to the requirements of 
Sec. 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. 

38 C.F.R. § 3.157(b) (2001) provides that: 

Once a 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, receipt of one of the following will 
be accepted as an informal claim for increased 
benefits or an informal claim to reopen.  In 
addition, receipt of one of the following will be 
accepted as an informal claim 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.  
The evidence listed will also be accepted as an 
informal claim for pension previously denied for 
the reason the disability was not permanently and 
totally disabling.  

Moreover, 38 C.F.R. § 3.157(b)(1) (2001) provides that, as to 
a report of examination or hospitalization by VA or uniformed 
services: 

The date of outpatient or hospital examination or 
date of admission to a VA or uniformed services 
hospital will be accepted as the date of receipt 
of a claim.  The date of a uniformed service 
examination which is the basis for granting 
severance pay to a former member of the Armed 
Forces on the temporary disability retired list 
will be accepted as the date of receipt of claim.  
The date of admission to a non-VA hospital where 
a veteran was maintained at VA expense will be 
accepted as the date of receipt of a claim, if VA 
maintenance was previously authorized; but if VA 
maintenance was authorized subsequent to 
admission, the date VA received notice of 
admission will be accepted.  The provisions of 
this paragraph apply only when such reports 
relate to examination or treatment of a 
disability for which service-connection has 
previously been established or when a claim 
specifying the benefit sought is received within 
one year from the date of such examination, 
treatment or hospital admission.  

Analysis

The laws and regulations pertaining to the receipt of VA 
compensation clearly state that any veteran entitled to 
receive retirement pay may not receive such pay concurrently 
with VA compensation.  Because the veteran was receiving 
retired pay, with severance pay, since discharge from service 
until July 21, 1978, when he was removed from TDRL, he may 
not receive VA disability compensation during that time.  The 
current effective date is the first day of the month which 
follows the month in which the veteran became entitled to 
actual receipt of VA disability compensation.  Since 
entitlement began with receipt of his claim in July 1994, the 
proper effective date is August 1, 1994.  See 38 C.F.R. 
§ 3.31 (2001).  

Beginning in 1978, and before July 21, 1978, the veteran 
twice wrote the then First Lady but on each occasion he 
referred only to his military retirement pay.  In none of 
that correspondence did he referred to VA disability 
compensation or evidence a belief in entitlement to receipt 
of VA disability compensation.  In fact, VA informed him that 
matters concerning his military retirement pay were outside 
the jurisdiction of VA.  

Accordingly, none of the letters that the veteran wrote to 
the then First Lady may be construed as a claim, formal or 
informal, for receipt of VA disability compensation.  

In the Joint Motion, attention was drawn specifically to VA 
Adjudication Procedure Manual, M21-1, Part IV, para. 
21.03(b)(1)(c) (July 8, 1997).  That provision provides that 
as to removal from the TDRL when there has been a prior 
disallowance: 

If a disability claim was previously disallowed 
because the veteran received retired pay, send the 
veteran VA Form 21-4138, Statement in Support of 
Claim, and VA Form 21-651 to use to reopen his or 
her claim.  

Here, after notice in August 1978 that the veteran had been 
removed from the TDRL, the RO send him VA Form 21-4138, 
Statement in Support of Claim.  

The RO did not send VA Form 21-651 to the veteran in 
September 1978.  However, while citation was made in the 
Joint Motion to the 1997 change to the applicable portion of 
the M21-1, that language cited was first added to the M21-1 
in 1992 and has remained unchanged.  The M21-1 in 1978 did 
not contain such language requiring the RO to forward VA Form 
21-651.  

In this regard, the January 2000 Board remand cited Norris v. 
West, 12 Vet. App. 413, 421 (1999) for the principle that 
when a veteran has previously filed a formal claim that 
satisfies the requirements of 38 C.F.R. § 3.151, pursuant to 
38 C.F.R. § 3.155(c), VA cannot require him to take any 
additional action in order to perfect his claim, i.e., he 
need not file another formal application for benefits as 
would otherwise be required pursuant to 38 C.F.R. § 3.155(a). 

38 C.F.R. § 3.151(a) (2001) provides that "[a] specific 
claim in the form prescribed by [VA] must be filed in order 
for benefits to be paid to any individual under the laws 
administered by VA."  However, here there was no prior 
informal claim and the veteran never executed and returned VA 
Form 21-4138 which the RO provided him in September 1978.  

In sum, absent some affirmative action on the part of the 
veteran, there was no means by which VA could determine that 
the veteran wished to receive VA disability compensation in 
lieu of military retirement pay.  

It is asserted that the veteran did not receive the September 
13, 1978, RO letter advising him of his right to reopen his 
claim for compensation benefits.  However, there is a 
presumption of regularity that supports the acts of public 
officers and, in the absence of clear evidence to the 
contrary, it is presumed that they have properly discharged 
their official duties.  See Gold v. Brown, 7 Vet. App. 315, 
319-20 (1995).  Accordingly, the mere allegation of 
nonreceipt of the September 1978 RO letter, which was sent to 
the veteran's most recent address of record (and the same 
address which the Navy Finance Center sent its' August 1978 
letter), is insufficient to rebut to presumption that the 
letter was properly sent by VA to the veteran.  

Clear evidence is required to rebut the presumption of 
regularity.  Ashley v. Derwinski, 2 Vet. App. 62, 65 (1992).  
In this case no such evidence has been submitted. 

It is alternatively alleged that the veteran was incompetent 
due to his service-connected psychiatric disorder and, thus, 
was unable to understand the meaning of the letter.  This 
argument assumes, contrary to that above, that the veteran 
did in fact received the September 1978 letter.  However, 
there is no competent medical evidence that he was 
incompetent at that time.  The fact that his service-
connected psychiatric disorder was evaluated as 50 percent 
disabling at that time is not sufficient for the Board to 
conclude that he was incompetent.  Rather, competent medical 
evidence of incompetency would be required.  Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).  

In this case, the earliest date of entitlement is the date of 
receipt of the veteran's letter received on July 29, 1994, 
inquiring as to eligibility for VA compensation.  That 
correspondence was contained in VA Form 21-4138, the very 
form which the RO had been forwarded to the veteran in 
September 1978 but which he had not executed and returned.  

When, after considering all information and lay and medical 
evidence of record, there is an approximate balance of 
positive and negative evidence as to any material issue, VA 
shall give the claimant the benefit of the doubt.  
38 U.S.C.A. § 5107(b) (West Supp. 2001).  See also Dela Cruz 
v. Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA 
simply restated what existed in section 5701 regarding the 
benefit-of-the-doubt doctrine").  

In reaching this decision, it is the judgment of the Board 
that the preponderance of the evidence is against the claim 
and, thus, there is no doubt to be resolved in favor of the 
veteran.  


ORDER

An effective date for payment of 50 percent disability 
compensation benefits for service-connected schizophreniform 
psychosis prior to August 1, 1994, is denied.  



		
	LAWRENCE M. SULLIVAN
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597 that tells 
you what steps you can take if you disagree with our 
decision.  We are in the process of updating the form to 
reflect changes in the law effective on December 27, 2001.  
See the Veterans Education and Benefits Expansion Act of 
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the 
meanwhile, please note these important corrections to the 
advice in the form:

? These changes apply to the section entitled "Appeal to 
the United States Court of Appeals for Veterans 
Claims."  (1) A "Notice of Disagreement filed on or 
after November 18, 1988" is no longer required to 
appeal to the Court.  (2) You are no longer required to 
file a copy of your Notice of Appeal with VA's General 
Counsel.
? In the section entitled "Representation before VA," 
filing a "Notice of Disagreement with respect to the 
claim on or after November 18, 1988" is no longer a 
condition for an attorney-at-law or a VA accredited 
agent to charge you a fee for representing you.