Citation Nr: 1014307 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 07-07 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date prior to March 9, 2004, for the grant of a 100 percent rating for paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The Veteran had active military service from August 1948 to July 1949. This matter comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted a 100 percent rating for paranoid schizophrenia, effective March 9, 2004. In a September 2005 rating decision, the RO denied an earlier effective date. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's claim for an increased rating for his service-connected paranoid schizophrenia was received by the RO on March 9, 2004. 2. The clinical records do not establish that the Veteran met the criteria for a 100 percent rating for paranoid schizophrenia during the one-year period prior to his March 9, 2004 claim. CONCLUSION OF LAW The criteria for an effective date prior to March 9, 2004, for the grant of a 100 percent rating for paranoid schizophrenia, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 3.400, 4.130, Diagnostic Code 9203 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 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) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of the VCAA notice is harmless if the defect is not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a May 2004 letter, issued prior to the decision appealed, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of or submit any further medical evidence relevant to the claim. In a March 2006 letter, issued after the decision appealed, he was advised of how disability ratings and effective dates are assigned. The Board notes that the Veteran's appeal of the effective date assigned for the grant of the increased rating is a downstream issue, and additional VCAA notice is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in a July 2005 letter, the Veteran was advised of what evidence was necessary to support his claim for an earlier effective date. The Board also observes the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case. However, this case was recently overturned in part by the Federal Circuit. See Vazquez-Flores v. Shinseki, No. 08- 7150 (Fed. Cir. Sep. 4, 2009). Hence, it need not be further discussed in this decision. Additionally, the Board finds that any deficiency with respect to the timing of the notices provided is harmless. The notices discussed above fully complied with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, and the Veteran and his representative were fully informed of the evidence which had been obtained in support of the appeal. Moreover, following the notice, the RO readjudicated the appeal in the January 2007 Statement of the Case. Thus, the Board concludes that there is no prejudice to the Veteran due to any defect in the timing of the notices provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, which includes his VA and private medical records, the May 2004 VA examination report, and his written statements. The Board finds that the Veteran and his representative have been accorded the opportunity to present evidence and argument in support of the issue addressed in this decision. Furthermore, the facts alleged as proving the claim pertain to records which are already in the file. Neither the Veteran nor his representative has indicated the existence of any other evidence not already contained in the claims file that might be relevant to this appeal. Thus, the Board finds that all relevant data has been obtained for determining the merits of the appeal and no reasonable possibility exists that any further notice or assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); 38 C.F.R. § 3.159(c) (2009). Analysis The assignment of effective dates of awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). The Veteran filed a claim for an increased rating for his service-connected paranoid schizophrenia that was received by the RO on March 9, 2004. He was afforded a VA examination in May 2004; and the examiner concluded at that time that the Veteran was totally impaired for an industrial setting due to his psychiatric disability. His symptoms included insomnia, nightmares, intrusive thoughts, decreased concentration and memory, hypervigilance, anhedonia, a desire to isolate, anxiety, depression, irritability, and periodic suicidal and homicidal ideation. Based on those findings, the RO concluded that the Veteran met the criteria for a 100 percent rating, effective from the date of his claim, March 9, 2004, in accordance with 38 C.F.R. § 3.400(o). See 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9203. Under the facts presented here, the Board finds that that is the earliest effective date that may be assigned. There is no earlier document in the claims file that may be construed as either a formal or informal claim for an increased rating for the Veteran's service-connected psychiatric disability filed prior to March 9, 2004. In fact, in a June 1991 decision, the Board denied the Veteran's claim for a rating in excess of 30 percent for his psychiatric disability. The Veteran did not appeal this decision; hence, it became final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2009). With the exception of claims for school benefits for his children and documents related to the confirmation of his dependents, there is no correspondence from the Veteran dated during the time period from June 1991 to March 9, 2004 that could be construed as a claim for increased disability compensation benefits for his service-connected psychiatric disability. Additionally, VA and private treatment records dated during the one-year period prior to the Veteran's March 9, 2004 claim for an increased rating do not show that he met the criteria for a 100 percent rating. See 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9203. To warrant a 100 percent disability rating, the evidence must reflect total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9203 (2009). However, the VA and private medical records document treatment for mainly other disabilities, not his mental disability. The earliest clinical evidence clearly denoting that the Veteran's paranoid schizophrenia met the criteria for a 100 percent rating was the May 2004 VA examination report, which was completed after he filed his claim. Consequently, March 9, 2004, i.e., the date his claim was received, is the earliest effective date that may be assigned for his 100 percent rating for paranoid schizophrenia. To the extent that the Veteran and his representative assert that the Veteran is entitled to an effective date from the date of his initial claim for benefits, and that his rating should not have been reduced at all during the intervening years, the Board again points out that a previous claim for a rating in excess of 30 percent for the disability was denied by the Board in a June 1991 decision. This decision was not appealed to the United States Court of Appeals for Veterans Claims (Court). Hence, it is final. 38 U.S.C.A. § 7104 (West 2002). The Court has clearly held that there is no basis in VA law for a freestanding earlier effective date claim in matters addressed in a final decision. Rather, when a decision is final, only a request for a revision premised on clear and unmistakable error could result in the assignment of earlier effective dates. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Consequently, the Board concludes that the attempt to overcome finality of the Board's June 1991 decision in raising a freestanding claim for entitlement to an earlier effective date in conjunction with this claim must fail. ORDER An effective date prior to March 9, 2004, for the grant of a 100 percent rating for paranoid schizophrenia is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs