Citation Nr: 0813083 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-11 713 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to an effective date earlier than November 26, 2002, for the grant of service connection for paranoid schizophrenia. ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran served on active duty from November 1958 to February 1962, from July to October 1968, and from November 1968 to August 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2004 rating decision in which the RO granted service connection for paranoid schizophrenia, and assigned a 100 percent rating, effective November 26, 2002. In a July 2004 letter, the veteran raised the question of entitlement to an earlier effective date for the grant of service connection for paranoid schizophrenia. The RO subsequently denied an earlier effective date for the grant of service connection in a March 2005 rating decision. The veteran continued to question the effective date assigned in a May 2005 letter, and the RO subsequently denied entitlement to an earlier effective date for the grant of service connection in an August 2005 rating decision. The veteran filed a notice of disagreement (NOD) with the denial of an earlier effective date in September 2005. A statement of the case (SOC) was issued in January 2006, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2006. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. On November 26, 2002, the RO received the veteran's initial claim for service connection for a nervous condition. 3. The record contains no statement or communication from the veteran, prior to November 26, 2002, that constitutes a pending claim for service connection for a nervous condition, to include paranoid schizophrenia. CONCLUSION OF LAW The claim for an effective date earlier than November 26, 2002, for the grant of service connection for paranoid schizophrenia is without legal merit. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In the present appeal, the January 2006 SOC included citation to the provisions of 38 C.F.R. § 3.400 and discussion of the legal authority governing effective dates for grants of service connection. A May 2006 letter specifically provided notice regarding the assignment of effective dates. Moreover, the veteran has been afforded the opportunity to present evidence and argument with respect to the claim for an earlier effective date for the grant of service connection for paranoid schizophrenia. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the veteran. As explained below, the claim for an earlier effective date lacks legal merit; therefore, the duties to notify and assist required by the VCAA are not applicable to this claim. See Mason v. Principi¸16 Vet. App. 129, 132 (2002). II. Analysis Under the applicable criteria, generally, the effective date of an award based on, inter alia, an original claim, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation from service; otherwise, the effective date is the date of the claim. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i) (2007). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The record reflects that the veteran filed an initial claim for service connection for a nervous condition on November 26, 2002. Although there is no date stamp on the claim, the veteran's signature is dated November 26, 2002. The RO denied service connection for schizophrenia, claimed as a nervous condition, in a July 2003 rating decision. The veteran filed an NOD with the July 2003 denial in September 2003, and, in the April 2004 rating decision, the RO subsequently granted service connection for paranoid schizophrenia, effective November 26, 2002. The effective date of the grant of service connection for paranoid schizophrenia was based on the date of receipt of the veteran's claim for service connection for a nervous condition. The veteran has advanced many arguments in connection with his claim for an earlier effective date. In his July 2004 letter, he asserted that he was entitled to an earlier effective date for the grant of service connection because the first time he applied for compensation, VA only considered service medical records from his first period of enlistment. The veteran added that he had been given his initial claim at the New York RO in 1973 or 1974. In a May 2005 statement, the veteran indicated that his disability had occurred in service in 1968 and continued to the present. In his September 2005 NOD, the veteran indicated that he was staying with a friend in 1972 and that he applied for VA benefits, but that VA looked at his first period of service, instead of his service in 1968. He added that VA gave him a "claim card" which was the only proof he had that he tried to file a claim for disability in 1973. Finally, in his April 2006 Form 9, the veteran indicated that he mistakenly used the wrong date on his application. Despite the foregoing, the Board finds no document that can be construed as a claim for service connection for a nervous condition, to include paranoid schizophrenia, associated with the claims file prior to November 26, 2002. While, as indicated above, the governing legal authority authorizes an effective date for the grant of service connection as early as the day after the date of the veteran's discharge from service if a claim for service connection was filed within one year of discharge, such is not the case here. Hence, the veteran's assertions that he had paranoid schizophrenia since his discharge from service are to no avail. In this regard, the earliest record in the claims file regarding a claim for service connection is an October 1967 claim for service connection for a back condition. The veteran was afforded a VA examination in December 1967 which included no psychiatric findings. The RO denied service connection for a back condition in a January 1968 rating decision. The next record from the veteran associated with the claims file is a claim for Chapter 34 educational benefits received in April 1968. The veteran again filed a claim for Chapter 34 educational benefits which was received in September 1975. Therefore, as there is no communication which can be construed as a claim, formal or informal, for service connection for paranoid schizophrenia within one year of separation from service, the appropriate effective date for the grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Although the veteran has asserted that he filed a claim for benefits in 1972 or 1973, thorough review of the claims file reveals no communication regarding service connection for a nervous condition, to include the "claim card" described by the veteran, prior to November 2002. Rather, the next document in the claims file after the September 1975 claim for Chapter 34 benefits is the November 2002 claim for service connection. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that VA properly discharged its official duties by properly handling claims submitted by the veteran. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary." Statements made by the veteran are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). The presumption of regularity in this case is not rebutted, because the only evidence to the contrary, are the veteran's statements that he filed a claim in 1972 or 1973. Further, the Board has considered the veteran's assertion made in his April 2006 substantive appeal, that he used the wrong date on his application, however, the Board finds that the date included on the claim for service connection for a nervous condition, at the time of filing of the claim, is inherently more credible than the veteran's comments made regarding the date used on his application, made several years later and in connection with a claim for benefits. Further, although there is no date stamp on the claim, the Board notes that the RO indicated in its July 2003 rating decision that the claim was received on November 26, 2002, thus bolstering the conclusion that the date used on the original claim for service connection was correct. In this case, the first document that can clearly be construed as a claim for the benefit sought was filed on November 26, 2002. As such, there is no legal basis for granting service connection for paranoid schizophrenia prior to this date. Rather, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than that assigned. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the grant of service connection for paranoid schizophrenia earlier than November 26, 2002, is assignable, the claim for an earlier effective date for the grant of service connection for paranoid schizophrenia must be denied. Where, as here, the law and not the evidence is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than November 26, 2002, for the grant of service connection for paranoid schizophrenia, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs