Citation Nr: 0813242 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 02-03 466A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an effective date earlier than May 19, 1998, for the establishment of service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from May 1954 to May 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2001 rating decision by the Department of Veterans affairs (VA) Regional Office (RO) in Louisville, Kentucky, which effectuated the Board's March 2001 grant of service connection for paranoid schizophrenia, and assigned an effective date of May 19, 1998. In December 2003, the Board remanded the case for additional development. Thereafter, by an August 2005 decision, the Board found that an earlier effective date was not warranted. The veteran appealed the Board's August 2005 decision to the United States Court of Appeals for Veterans Claims (Court). By a May 2007 Order, the Court, pursuant to a joint motion, vacated the Board's decision to the extent it denied an earlier effective date for the veteran's paranoid schizophrenia, and remanded the case for readjudication consistent with the joint motion. The Board notes that the August 2005 decision also found that an earlier effective date was not warranted for the establishment of service connection for spondylolisthesis with low back pain. However, that issue was withdrawn by the veteran while on appeal to the Court and dismissed by the Court. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case has been completed. 2. Service connection was previously denied for an acquired psychiatric disorder on multiple occasions, to include Board decisions dated in June 1978, December 1979, January 1981, September 1983, March 1985, June 1989, October 1992 and March 1997. Further, the October 1992 Board decision was upheld by the Court in May 1995. 3. Following the March 1997 Board decision, a November 1997 rating decision found that new and material evidence had not been received to reopen the previously denied claim of service connection for an acquired psychiatric disorder. 4. A March 2001 Board decision held as a finding of fact that the veteran did not initiate an appeal from the November 1997 rating decision, and that, as a conclusion of law, the November 1997 rating decision was final. 5. The veteran did not appeal the March 2001 Board decision to the Court, nor has he alleged that decision's holding regarding the November 1997 rating decision was the product of clear and unmistakable error (CUE). 6. Following the November 1997 rating decision, the next written communication in which the veteran indicated he was seeking service connection for a psychiatric disorder was received December 2, 1997. CONCLUSIONS OF LAW 1. The March 2001 Board decision's holding that the veteran did not initiate an appeal to the November 1997 rating decision is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). 2. The criteria for an earlier effective date of December 2, 1997, for the establishment of service connection for paranoid schizophrenia are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). However, as this appeal was from the initial effective date assigned following the establishment of service connection for paranoid schizophrenia, it does not appear that pre-adjudication notice was possible in this case. The veteran was sent correspondence in January 2004 which, in pertinent part, noted the VCAA, and explained VA's duties to assist and to notify. The Board also notes that the veteran has actively participated in the processing of his case, and the statements submitted in support of his claim have indicated familiarity with the requirements for the benefit sought on appeal. For example, a statement submitted by his then accredited representative in September 2003 referenced 38 C.F.R. § 3.400, which contains the relevant regulatory provisions for the assignment of effective date(s). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board notes that adjudication of a claim for an earlier effective date in this case is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the veteran. Consequently, there is no additional development that can be conducted, nor any other records which can be obtained, which would substantiate the veteran's claim. The Board further notes that its August 2005 decision found, in essence, that VA had satisfied duties to assist and notify, and the veteran did not dispute that finding on appeal to the Court. For example, both the appellant's brief submitted on his behalf by his attorney, as well as the joint motion that was the basis for the May 2007 Court Order, only addressed the Board's reasons and bases for denying an earlier effective date. None of these documents alleged a failure in either the duty to assist or to notify. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court, or the veteran, had any substantive comments concerning these duties, such would have surfaced in the joint motion or the Court Order so that any deficiencies could be corrected. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The law provides that the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 .S.C.A. § 5110; 38 C.F.R. § 3.400. In this case, service connection was previously denied for an acquired psychiatric disorder on multiple occasions, to include Board decisions dated in June 1978, December 1979, January 1981, September 1983, March 1985, June 1989, October 1992 and March 1997. Further, the October 1992 Board decision was upheld by the Court in May 1995. Accordingly, those decisions are final. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 20.1100. There are two statutory exceptions to the rule of finality. First, pursuant to 38 .S.C.A. § 5108, the Secretary must reopen a claim "[i]f new and material evidence [regarding the claim] is presented or secured." Second, a decision "is subject to revision on the ground of clear and unmistakable error." 38 U.S.C.A. § 5109A. Rudd v. Nicholson, 20 Vet. App. 296 (2006). However, the Court emphasized that because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, only a request for revision based on CUE could result in the assignment of an earlier effective date for the appellant's awards. See also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."). By a statement submitted in July 2005, the veteran's representative specified that the veteran did not seek consideration of the effective dates at issue based on a claim of CUE, and the representative declined the opportunity offered by the Board to address that issue. Therefore, no claim that CUE warrants an effective date prior to the assigned effective date at issue is addressed in this decision, nor may such a claim be inferred. Following the March 1997 Board decision, a November 1997 rating decision found that new and material evidence had not been received to reopen the previously denied claim of service connection for an acquired psychiatric disorder. The joint motion, as well as other statements submitted on behalf of the veteran by his attorney, contends that documents he submitted to VA that were received on December 2, 1997, constitute a valid Notice of Disagreement (See 38 C.F.R. § 20.201) as to that decision, and that it never became final. However, a March 2001 Board decision held as a finding of fact that the veteran did not initiate an appeal from the November 1997 rating decision, and that, as a conclusion of law, the November 1997 rating decision was final. The veteran did not appeal the March 2001 Board decision to the Court. Consequently, that decision is final, and the Board cannot presently readjudicate the findings therein on the same factual basis in the absence of CUE. The veteran has not alleged that the March 2001 Board decision's holding regarding the November 1997 rating decision was the product of CUE. Further, the August 2005 Board decision also noted the holding of the March 2001 Board decision as to the November 1997 rating decision, and the veteran did not contend before the Court that either position was erroneous. See Harris, supra; Fugere, supra. Rather, the joint motion contended that the August 2005 Board decision contained inadequate reasons and bases as to whether the December 2, 1997, statement constituted a valid Notice of Disagreement. However, as the December 2, 1997, statement was of record at the time of the March 2001 Board decision, the Board presently has no authority to address the merits of this contention; i.e., the Board, at this time, is legally precluded from addressing the merits of whether said document constituted a valid Notice of Disagreement as to the November 1997 rating decision. The Board in no way disputes the veteran's belief that he warrants an earlier effective date for the award of service connection for his paranoid schizophrenia. As indicated by the Rudd decision, the veteran is not without recourse, "as he remains free to file a motion to revise based upon clear and unmistakable error" with respect to the March 2001 Board decision which determined that he did not initiate an appeal to the November 1997 rating decision. A valid motion for CUE must comply with the requirements of 38 C.F.R. § 20.1402. Despite the foregoing, the Board does find that the veteran is entitled to an effective date earlier than May 19, 1998, in this case. Although the Board is precluded at the present time from making a determination as to whether the December 2, 1997, statement was a valid Notice of Disagreement, it does find that the wording of this statement was sufficient to indicate he was seeking service connection for an acquired psychiatric disorder particularly as he used phraseology consistent with his prior claims for this benefit. Therefore, the Board finds that it constitutes a valid application to reopen the previously denied claim; i.e., it was an informal claim. See 38 C.F.R. §§ 3.1(p), 3.155; see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Reasonable doubt has been resolved in the veteran's favor as to this matter. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In view of the foregoing, the veteran is entitled to an effective date of December 2, 1997, for the establishment of service connection for his paranoid schizophrenia. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. ORDER Entitlement to an earlier effective date of December 2, 1997, for the establishment of service connection for paranoid schizophrenia is granted, subject to the law and regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs