Citation Nr: 0814583 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-13 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an earlier effective date for the grant of service connection for schizophrenia, based on clear and unmistakable error (CUE). 2. Entitlement to an award of special monthly compensation at the housebound rate prior to April 6, 2001. 3. Entitlement to special monthly compensation at housebound rate from January 10, 2002 to present. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Witness ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from April 1973 to October 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 decision rendered by the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA), which in part, granted special monthly compensation from April 6, 2001 to January 9, 2002. The veteran disagreed with the effective date assigned, arguing that special monthly compensation should be awarded both before and after this period. It also arises from an August 2005 rating decision, wherein the RO continued the denial of award of special monthly compensation for additional periods of time, and denied an earlier effective date for schizophrenia. By this decision, the RO also denied a claim of CUE in a July 1979 RO decision that denied service connection for a personality disorder. Regarding the claim of CUE in the July 1979 RO decision that denied service connection for a personality disorder, it appears that the veteran and his representative essentially contend that the psychological manifestations noted in service and shortly thereafter, were signs of schizophrenia- and not immature personality disorder. Thus, their argument is essentially a claim that service connection should have been awarded back then for schizophrenia. While the RO appears to have added the issue of whether new and material evidence was received to warrant reopening of the claim for service connection for a personality disorder, and carried it forth on the statement of the case, the Board finds that adjudication of that matter (involving service connection for a mental or psychiatric symptom) is moot because the veteran has subsequently been awarded service connection and a 100 percent rating for schizophrenia. As the veteran is currently in receipt of a total schedular rating for a psychiatric disorder (a total grant of the benefit sought), it would serve no real purpose for the Board to adjudicate the issue involving service connection for a personality disorder. What the veteran wishes is compensation for his psychiatric disability back to a date earlier than the current effective date. The issue on appeal of entitlement to an earlier effective date for schizophrenia (including by way consideration of the assertion of CUE in the earlier RO decision) completely addresses the veteran's claims. Thus, there is no prejudice to the veteran in recharacterizing the issues remaining on appeal as reflected on the title page. In a December 2004 claim, the veteran raised the issue of entitlement to an earlier effective date of service connection for recurrent syncopal episodes, based on clear and unmistakable error (CUE). The subsequent RO rating decision and statement of the case did not address this issue. Thus, the matter is referred back for to the RO for appropriate action by the agency of original jurisdiction. The issue of entitlement to special monthly compensation at the housebound rate from January 10, 2002 to the present is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 1979 rating decision which denied service connection for a personality disorder was not clearly and unmistakably erroneous 2. April 6, 2001 is the date of receipt of the claim to reopen the matter of entitlement to service connection for psychiatric disability, and there is no evidence of an unadjudicated formal or informal claim for entitlement to service connection for schizophrenia prior to April 6, 2001. 3. Entitlement to service connection for schizophrenia was not shown until the September 2003 VA medical opinion. 4. The veteran was awarded pension benefits for non-service- connected disabilities at a rate of 70 percent, effective from January 14, 2001. 5. Prior to April 6, 2001, the veteran did not have any service-connected disabilities; and there is no evidence of an unadjudicated formal or informal claim for special monthly compensation. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 6, 2001, for the grant of service connection for schizophrenia, paranoid type, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.105 3.400 (2007). 2. The criteria for entitlement to special monthly compensation based on housebound status have not been met prior to April 6, 2001. 38 U.S.C.A. §§ 1114(l)(s), 5107 (West 2002); 38 C.F.R. §§ 3.400, 3.350, 3.352 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. The notification must also include the request that the claimant provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b) (2007). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119- 120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA complied with notification responsibilities in regards to the veteran's claim for earlier effective dates in correspondence sent to the veteran in February 2005 and March 2006. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and requested that he send in evidence in his possession that would support his claim. In particular, the March 2006 letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in the Dingess decision. Moreover, since the September 2004 rating decision that is on appeal granted special monthly compensation at the housebound rate and an effective date for the award, statutory notice had served its purpose and its application was no longer required. See Dingess Id. Supplemental statements of the case (SSOC) dated in March 2006 and November 2007 provided notice on the "downstream" issue of effective dates of awards and readjudicated the matters after the veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Neither the veteran nor his representative has alleged that notice in these matters was less than adequate. Further VCAA notice is not required on the particular issue involving special monthly compensation prior to April 6, 2001, because this claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). VA has also made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The information and evidence associated with the claims file consist of the veteran's service medical records, VA and private medical treatment records, and reports from VA examinations. The veteran has not identified any outstanding records for VA to obtain that were relevant to the claim and the Board is likewise unaware of such. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Factual Background & Analysis VA law provides that the effective date for an award of disability compensation based on an original claim for direct service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.400(b)(2)(i), (r) (2007). Under VA laws and regulations, 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 laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.151(a) (2007). VA regulations also provide that the terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2007). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). However, that the Board is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (2007). In asserting a claim of CUE, the claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). The United States Court of Appeals for Veterans Claims (Court) has held that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application. Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). The Court has also held that a breach of a duty to assist cannot form the basis for a claim of CUE. Hazan v. Gober, 10 Vet. App. 511 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (failure to fulfill duty to assist cannot be basis for CUE even when medical record that RO erroneously failed to obtain later formed basis for award of service connection when RO obtained record). I. Schizophrenia After a VA examination in September 2003 provided a favorable medical opinion as to the likelihood of a connection between the veteran's psychiatric problem and service, a Decision Review Officer (DRO) awarded service connection for schizophrenia in a December 2003 Supplemental Statement of the Case (SSOC). A 70 percent disability evaluation was awarded, effective from April 6, 2001. The veteran now contends he is entitled to an effective date prior to April 6, 2001 for the grant of service connection for schizophrenia. Specifically, he contends that there was CUE in a July 1979 RO decision that denied service connection for a personality disorder. In May 1979, the veteran filed a claim of service connection for fainting spells and an injury to his chin. In a July 1979 rating decision, the RO denied the veteran's claim of service connection for a nervous condition (immature personality disorder), and instead granted pension benefits based upon non-service-connected disabilities. At the time of the July 1979 decision, only service medical records and service personnel records were of record. The service medical records showed that the veteran had been evaluated between August and September 1975 for complaints of recurrent dizzy spells and headaches. Notes from an initial neurology consultation reflect a clinical impression, in pertinent part, of vaso-vagal syncope; rule out hypoglycemic episodes; rule out orthostatic hypotension; and referral for psychiatric clearance. In a record from the September 1975 psychiatric consultation, the psychiatrist noted that the neurological consultant had found no underlying medical illness causing the veteran's symptoms that would disqualify him for future duty. The psychiatrist noted further that the neurologic consultant's diagnostic impression was that both the fainting spells and headaches were a psychophysiologic reaction. The psychiatric clinical impression was immature personality disorder, severe. It was recommended that the veteran be administratively discharged as unsuitable for further service. Service personnel records, which were also of record at the time of the 1979 decision, reflect that the veteran was administratively discharged by reason of unsuitability based on his character and behavior disorder. The veteran's representative has raised several specific arguments to support the claim for an earlier effective date based upon CUE. He alleges that: 1) the in-service diagnosis of immature personality disorder was a misdiagnosis; 2) the VA failed to provide an examination in connection with the July 1979 rating decision; 3) VA erred by relying upon the in-service findings and opinion of the military psychiatrist who diagnosed immature personality disorder; 4) the VA gave more weight to the findings of the military psychiatrist over the military neurologist, because the latter's opinion was handwritten and not typed; and 5) the veteran was not receiving medication for his schizophrenia at the time of the prior decision and was unaware of the need to submit a timely appeal of the 1979 RO decision. Based upon a careful review of the record, the Board finds that an earlier effective date for service connection for schizophrenia is not warranted, including on the basis of CUE. It is initially noted that the record contains no evidence of any unadjudicated formal or informal claim for entitlement to service connection for schizophrenia prior to April 6, 2001. As noted, the RO denied service connection for a nervous condition (immature personality disorder), in a July 1979 rating decision. The veteran was given notice of the denial and his appellate rights in correspondence dated in July 1979, but he did not file a timely appeal of this determination within the one-year appellate period following issuance of this notice. Therefore, the denial became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.159, 3.160(d), 20.200, 20.302, 20.1103 (2007). The veteran did not file a claim for schizophrenia or any other psychiatric disorder until April 6, 2001. Entitlement was not shown until the September 2003 VA examination. An effective date prior to the date of the reopened claim (April 6, 2001) is not warranted. 38 C.F.R. § 3.400. The Board has considered whether an earlier effective date is warranted on the basis of CUE in the July 1979 RO decision which denied service connection for a nervous condition (immature personality disorder), but finds that there is none. As indicated, VA law requires that a CUE determination be made only upon the record and law existing at the time of the prior adjudication in question. At the time of the July 1979 rating decision, the evidence available to the RO indicated that the fainting spells and headaches were a psycho-physiologic reaction. In addition, the evidence showed that the veteran did not have an acquired psychiatric disorder, but rather immature personality disorder, severe. The laws at the time of the July 1979 decision stated that congenital or developmental defects such as personality disorders were not considered diseases or injuries for the purposes of service connection. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Therefore, based on the record and law as it existed at the time of the 1979 rating decision, the RO did not err in denying the claim of service connection for a personality disorder. The veteran argues that he did, in fact, have an acquired psychiatric disorder at that time, schizophrenia; and that the diagnosis of immature personality disorder was erroneous and/or part of a conspiracy to discharge the veteran from service and deny him VA compensation benefits. Notwithstanding this argument, it is clear that the record in 1979 contained no medical evidence of a diagnosed psychiatric disorder. As a diagnosis of an acquired psychiatric disorder (schizophrenia) was not specifically identified by competent medical evidence at the time of the 1979 decision (or for years thereafter), the Board cannot now conclude that the RO committed undebatable error in failing to grant service connection for a psychiatric disorder at that time. The Board is mindful that the record today contains an April 2002 VA opinion, an August 2002 VA addendum opinion, and a September 2003 VA examiner's opinion which serve to establish that the symptoms demonstrated in service may have been early manifestations of the veteran's current schizophrenic disorder. This evidence, however, was not of record at the time of the July 1979 decision and thus it may not be used as rationale to determine whether there was CUE at that time. The veteran's remaining arguments - that VA failed in its duty to assist by providing a VA examination in 1979, and that VA did not properly weigh or evaluate the medical evidence of record; are, as a matter of law, insufficient to plead CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) ("an incomplete record, factually correct in all other respects, is not clearly and mistakably erroneous"). Thus, regardless of whether the veteran and his representative believe that the RO gave more weight to the findings of the military psychiatrist over the military neurologist, because the latter's opinion was handwritten and not typed- as stated above, disagreement as to how the facts were weighed or evaluated is not CUE. If the veteran disagreed with how the evidence was weighed at the time of the rating action in 1979, he needed to have appealed that decision within a year of being notified of the RO's decision. The argument that he was unable to appeal because he was not on medication for his schizophrenia is not sufficient. While this may have been the case, there was no evidence in the record at the time of the 1979 rating decision that the VA knew that he was incompetent or mentally incapacitated to such degree that he was unable to file a timely appeal. Nor does this amount to a finding of clear and unmistakable error in the 1979 rating decision itself. As for claims regarding VA's failure in its duty to assist the veteran in developing his 1979 claim, the Court has also held that a breach of a duty to assist cannot form the basis for a claim of CUE. See Hazan and Caffrey, supra. In summary, the Board concludes that the correct facts, as known at the time, were before VA adjudicators at the time of the July 1979 rating decision and that the statutory and regulatory provisions extant at the time were correctly applied. The Board finds that there was no error which was undebatable and of the sort which, had it not been made would have manifestly changed the outcome at the time it was made. The Board finds no CUE in the prior decision. As the Board can identify no such earlier unadjudicated claim for schizophrenia and no evidence of CUE in the prior and final July 1979 decision, the claim for entitlement to an earlier effective date for the award of entitlement to service connection for schizophrenia, paranoid type, must be denied. II. Special Monthly Compensation In a rating decision dated in September 2004, the RO granted entitlement to special monthly compensation based upon the housebound criteria from April 6, 2001 to January 10, 2002. The veteran argues that he is entitled to special monthly compensation at a much earlier date - beginning April 30, 1979. As is explained below, entitlement to an effective date prior to April 6, 2001 for special monthly compensation is precluded as a matter of law. SMC at the Housebound rate is payable to a veteran who has a single service-connected disability rated as 100 percent disabling and either (a) has an additional service-connected disability, or disabilities, independently rated as 60 percent disabling, which (i) is/are separate and distinct from the service-connected disability rated as 100 percent disabling and (ii) involve(s) different anatomical or bodily symptoms; or (b) is permanently housebound by reason of a service-connected disability or disabilities. The latter requirement is met when the veteran is substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities, or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities will continue throughout the veteran's lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Based upon a careful review of the evidence, the criteria for entitlement to special monthly compensation prior to April 6, 2001 have not been met. The threshold requirement for establishing entitlement to SMC based on housebound status is that there must be a single service connected disability rated or ratable at 100 percent. The veteran was not service-connected for any disabilities prior to April 6, 2001. Earlier in this decision, the Board addressed the issue of an earlier effective date for schizophrenia and determined that an earlier effective date was not warranted, including on the basis of CUE. Since the veteran was not service-connected for any disability prior to April 6, 2001 and there is no evidence of any unadjudicated formal or informal claim in the record for entitlement to SMC prior to April 6, 2001- the minimum requirements for SMC at the housebound rate were not met. Here, it is the law and not the facts which are dispositive of this issue. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board thus concludes that an effective date earlier than April 6, 2001, for the grant of special monthly compensation is not warranted in this case under VA law and regulations governing special monthly compensation. 38 U.S.C.A. §§ 5108, 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2007). Therefore, the appeal must be denied. ORDER An effective date earlier than April 6, 2001, for the grant of service connection for schizophrenia, based on clear and unmistakable error (CUE) is denied. An effective date earlier than April 6, 2001 for the grant of special monthly compensation at the housebound rate is denied. REMAND The veteran contends he is entitled to special monthly compensation at the housebound rate from January 10, 2002 to the present. A review of the record shows that the veteran was not afforded any VCAA notice regarding the criteria necessary to establish entitlement to special monthly compensation. It would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOGCPREC 16-92. Therefore, for this reason, a remand is required. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish entitlement to special monthly compensation for the period beginning January 10, 2002, including information regarding the disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Thereafter, the RO should again review the record and take any additional measures necessary to fully develop the claim (to include affording an examination to ascertain whether he is housebound, if necessary). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. (CONTINUED ON NEXT PAGE) The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Dennis F. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs