Citation Nr: 0810333 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-34 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to an effective date earlier than July 31, 2002, for the grant of service connection for schizophrenia/schizoaffective disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from August 1971 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. A claim of entitlement to service connection for psychiatric disability was denied by a rating decision dated in January 1992. The veteran did not appeal. 2. The veteran sought to reopen his claim of service connection for neuropsychiatric disability in August 1998. Service connection for schizophrenia was denied in April 1999. The veteran did not appeal. 3. The veteran filed a claim of entitlement to service connection for post-traumatic stress disorder (PTSD) on July 31, 2002. In March 2004 the veteran asked the RO to readjudicate the previously denied claim of service connection for schizophrenia. 4. The RO awarded service connection in August 2004; it accepted the PTSD claim received on July 31, 2002, as an application to reopen a claim of entitlement to service connection for schizophrenia. CONCLUSION OF LAW The criteria for award of an effective date prior to July 31, 2002, for the grant of service connection for schizophrenia/schizoaffective disorder have not been met. 38 U.S.C.A. §§ 5110, 7105 (West 2002 and Supp. 2007); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran served on active duty from August 1971 to September 1975. He submitted his original claim of entitlement to service connection for, inter alia, neuropsychiatric disability in June 1991. The veteran's service medical records reveal complaints of mild psychological depression in April 1973. The veteran was noted to be nervous and apprehensive in May 1974. The veteran's August 1971 entrance examination and September 1975 separation examination revealed normal psychological evaluations. The veteran's claim was denied in January 1992. The basis for the denial was that the veteran's complaints of nervous problems in service resolved prior to his discharge from service and there was no evidence of psychosis or neurosis in service and no evidence of psychosis within one year of his separation from service. The RO determined that the veteran's schizophrenia was not shown to have been incurred in or aggravated by service. The veteran was provided notice of the rating decision in February 1992. He did not appeal. The veteran submitted a request to reopen his claim of service connection for neuropsychiatric disability in August 1998. The veteran's claim for schizophrenia was denied in April 1999. The veteran was provided notice of the rating decision in April 1999. He did not appeal. The veteran filed a claim of entitlement to service connection for PTSD on July 31, 2002. The PTSD claim was denied in March 2003. The veteran filed a notice of disagreement in March 2004 as to the March 2003 denial of the PTSD claim and included a request to readjudicate the previously denied claim of service connection for schizophrenia. The veteran was afforded VA examinations in February 2003 and May 2004. The February 2003 examiner diagnosed the veteran with schizoaffective disorder. The May 2004 examiner also diagnosed the veteran with schizoaffective disorder and opined that the complaints of anxiousness and depression in service were likely diagnostic of the early stages of schizoaffective disorder. She concluded that it was likely that the early states of schizoaffective disorder were present while the veteran was in service. The RO, by an August 2004 decision, awarded service connection; it accepted the PTSD claim received in July 2002 as an application to reopen the previously denied claim of service connection for schizophrenia. The veteran submitted his notice of disagreement with the effective date for service connection in March 2005. The veteran claimed that the effective date should be June 25, 1991, the date of the original claim. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002 and Supp. 2007); 38 C.F.R. § 3.400(b)(2)(i) (2007). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2007). See Nelson v. Principi, 18 Vet. App. 407, 409 (2004); Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215 (1993). The veteran was originally denied service connection for psychiatric disability in January 1992. He failed to perfect an appeal of that decision and it became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2007). As such, new and material evidence was required to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). The veteran submitted a request to reopen his claim of service connection for neuropsychiatric disability in August 1998. Service connection for schizophrenia was denied by an April 1999 rating decision. He failed to perfect an appeal of that decision and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2007). As such, new and material evidence was required to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2007). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a) (West 2002). Section 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). Moreover, the United States Court of Appeals for Veterans Claims (Court), has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998). In this case, the evidence of record shows that the veteran was denied service connection in January 1992, and he did not appeal that decision. As such, new and material evidence was required to reopen his claim of service connection. He filed another claim in August 1998 which was denied in April 1999 and he did not appeal that decision. Construing the July 2002 submission liberally, the veteran's current claim was received on July 31, 2002. In regard to this claim, the veteran was afforded the earliest possible effective date. His initial claim was denied in January 1992 and he failed to appeal. He filed another claim of service connection in August 1998, which was denied in April 1999. He failed to appeal. Finally, he filed a claim for PTSD on July 31, 2002. The veteran filed a notice of disagreement as to the denial of PTSD in March 2004 and he requested that a claim of entitlement to service connection for schizophrenia be reopened. The RO accepted the claim of entitlement to service connection for PTSD, received on July 31, 2002, as a claim to reopen a claim of entitlement to service connection for schizophrenia and the RO established the date of the PTSD claim as the effective date. There is no legal basis to establish an earlier date. See Nelson, Leonard, Sears, and Lapier, supra. Whether entitlement was shown earlier or not, the effective date can be no earlier than the date of the claim to reopen. 38 U.S.C.A. § 3.400. As noted above, the Board finds that there is no basis to assign an earlier effective date. The preponderance of the evidence is against the claim for an earlier effective date. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply; therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). In deciding the issue in this case, the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007). The Board has also considered the implementing regulations. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, the Secretary is required to provide certain notices when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of the information and evidence that is to be provided by the claimant and that which is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West 2002). In those cases where notice is provided to the claimant, a second notice is to be provided to advise that, if such information or evidence is not received within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C.A. § 5103(b) (West 2002 & Supp. 2007). In addition, 38 C.F.R. § 3.159(b), details the procedures by which VA will carry out its duty to notify. The RO wrote to the veteran in February 2003 and informed him of the elements necessary to establish service connection for PTSD. He was informed of what the RO would do in the development of the claim, what he was required to do and that he should submit evidence in support of his claim. The RO accepted the claim of entitlement to service connection for PTSD as an application to reopen a claim of entitlement to service connection for schizophrenia. The RO granted service connection for schizophrenia/schizoaffective disorder in August 2004. The veteran was informed that his claim of service connection for schizophrenia/schizoaffective disorder was assigned a 70 percent disability rating from July 31, 2002. The veteran filed a notice of disagreement with the effective date. The RO wrote to the veteran again in March 2005 and notified him of the evidence/information required to substantiate his claim for an earlier effective date. He was advised to submit any evidence he had. The RO issued a statement of the case (SOC) in September 2005. In reviewing the requirements regarding notice found at 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot find any absence of notice in this case. As reviewed above, the veteran has been provided notice regarding the type of evidence needed to substantiate his claim. In summary, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Additionally, while the veteran was not told of the criteria used to award disability ratings, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the veteran was informed of the evidence/information required to substantiate his claim for an earlier effective date. Therefore, a remand in order to address a rating question is not necessary; such an issue is not before the Board. Regarding VA's duty to assist under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)(1)-(3), the Board notes that the RO has obtained service medical records, private treatment reports, and VA outpatient treatment reports. The veteran has not alleged that there is any outstanding evidence that would support his contention that service connection should be awarded at an earlier date. The Board is not aware of any outstanding evidence. Therefore, the Board finds that the VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e) (2007). ORDER Entitlement to an effective date earlier than July 31, 2002, for the grant of service connection for schizophrenia/schizoaffective disorder is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs