Citation Nr: 1032167 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 07-06 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date earlier than September 22, 2000, for the grant of service connection for schizophrenia. REPRESENTATION Appellant represented by: Darla J. Lilley, Attorney ATTORNEY FOR THE BOARD Douglas Massey, Counsel INTRODUCTION The Veteran served on active duty from August 1958 to July 1961. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for schizophrenia, effective from September 22, 2000. The Veteran appealed that decision by requesting an earlier effective date for that award. In a December 2008 decision, the Board denied the claim for an effective date earlier than September 22, 2000, for the grant of service connection for schizophrenia, and another claim involving service connection for Weil's disease. The Veteran appealed the denial of his earlier-effective-date claim to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2010 order, granting a joint motion for remand, the Court vacated the Board's denial of his earlier-effective date claim and remanded the case to the Board for further development and readjudication in compliance with directives specified. The Court then dismissed the Board's denied of service connection for Weil's disease since the Veteran did not appeal that issue. In December 2008, the Board also remanded other claims for additional development and adjudication by the RO, via the Appeals Management Center (AMC), in Washington, DC. Since all requested development has not yet been accomplished, including the issuance of a supplemental statement of the case (SSOC) by the RO/AMC, these issues are not before the Board at this time. 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. In January 1973, the Board denied service connection for a nervous disorder. 2. On January 21, 1981, the RO received the Veteran's claim for service connection for scarlet fever and hepatitis, which made no reference to a psychiatric disorder. 3. A January 1981 decision by the RO did not adjudicate a claim for service connection for a psychiatric disorder. 4. On September 22, 2000, the RO received the Veteran's claim in which he again requested service connection for a psychiatric disorder. 5. During the intervening period from when the Board denied his claim in January 1973 until he filed a claim to reopen on September 22, 2000, neither a formal nor an informal communication in writing was received from the Veteran requesting service connection for a psychiatric disorder. 6. In November 2005, the RO granted service connection for schizophrenia and assigned an effective date of September 22, 2000, for that award, since this was the date the Veteran filed his claim to reopen after the Board had denied the claim in January 1973. CONCLUSION OF LAW The criteria for an effective date earlier than September 22, 2000, for the grant of service connection for schizophrenia have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the earlier-effective-date claim has been properly developed for appellate review. The Board will then address this claim on its merits, providing relevant VA laws and regulations, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). This appeal arises from the Veteran's disagreement with the effective date following the grant of service connection for schizophrenia. In such cases in which service connection for the underling claim is granted, the claim as it arose in its initial context has been substantiated. Therefore, additional VCAA notice is not required because the intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel also has held that no additional VCAA notice is required in this circumstance for such a downstream issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued an SOC addressing the downstream effective-date claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than September 22, 2000, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Consequently, the Board finds that all necessary development of the downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. Moreover, as will be explained, resolution of this claim ultimately turns on when he filed this claim, so an examination and opinion are not needed to fairly decide this claim. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA or Court. II. Entitlement to an Effective Date Earlier than September 22, 2000, For the Grant of Service Connection for Schizophrenia In November 2005, the RO granted service connection for schizophrenia, effective from September 22, 2000, the date the Veteran filed his claim to reopen after a Board decision had denied that claim many years prior. The Veteran now wants an earlier effective date. For the reasons discussed below, however, the Board finds no basis to assign an effective date earlier than September 22, 2000, for that award. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will 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, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Id; Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought. An "application" is defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). In this case, the Veteran filed a claim for service connection for a psychiatric or nervous disorder in August 1971. In a December 1971 decision, the RO denied the Veteran's claim for service connection for a nervous disorder (schizophrenic reaction, paranoid type). After the Veteran appealed that decision, the Board also denied service connection for a nervous disorder in January 1973. The Veteran did not appeal that decision to the Court. This is significant because all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis, unless the Chairman orders reconsideration or one of the other exceptions to finality apply, which has not been shown in this case. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. On September 22, 2000, the Veteran filed a petition to reopen his claim for service connection for a psychiatric disorder. The RO initially denied the Veteran's petition in an October 2000 decision. But in a November 2005 decision, the RO granted service connection for schizophrenia from the date he filed his claim to reopen on September 22, 2000. Under these circumstance, the Board finds that, under 38 U.S.C.A. § 5110(a), the effective date can be no earlier than September 22, 2000, the date the Veteran filed his petition to reopen which ultimately resulted in the grant of benefits. The prior January 1973 Board decision that denied service connection for a nervous condition is final and cannot be altered absent a collateral attack by showing it involved CUE, which has not been alleged in this case. 38 C.F.R. § 3.105(a). And since the Veteran filed a petition to reopen his claim on September 22, 2000, there is no basis to award an effective date earlier than September 22, 2000. The Board has reviewed the record but finds no document during the intervening period between the January 1973 Board decision and September 22, 2000, which could be construed as either an informal or a formal claim for service connection for a psychiatric disorder. As noted in the joint motion, the Veteran has recently alleged that a January 1981 claim involving service connection for scarlet fever and hepatitis also included a petition to reopen his claim for service connection for a psychiatric disorder. The Board disagrees. The January 1981 claim makes no reference to psychiatric problems. And the Court has held that the benefit sought must be identified in the claim, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), and that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed with VA. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Therefore, since the January 1981 claim for service connection for scarlet fever and hepatitis does not indicate the Veteran's intent to seek service connection for a psychiatric disorder, it does not constitute a claim for service connection for a psychiatric disorder. As the Board has determined that the January 1981 correspondence did not constitute a claim to reopen, it therefore follows that such a claim was not adjudicated in the January 1981 rating decision, and that a February 1981 letter to the President could not constitute a notice of disagreement with any determination as to the issue of entitlement to service connection for a psychiatric disorder. As no intention to raise a new claim was expressed in that letter, the Board further finds that it cannot constitute a new application to reopen. Id. Finally, while the Board recognizes that April 1981 correspondence from the RO erroneously indicated that the Board had also recently denied an application to reopen a claim for service connection for a nervous condition, the Board finds that such error does not nullify the effect of the above-noted lack of evidence of a prior adjudicated or unadjudicated claim. More specifically, it has been held in this context, erroneous VA notice cannot provide the basis for a theory of estoppel. McTighe v. Brown, 7 Vet. App. 29, 30 (1994). See also Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110 as it does not contain a statute of limitations but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances), aff'g 16 Vet. App. 309 (2002); Rodriguez v. West, 189 F.3d 1351, 1355 (Fed. Cir. 1999) (stating that sections 5102 and 7722(d) do not justify "ignoring the unequivocal command in 38 U.S.C.A. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore.") In short, payments of monetary benefits from the Federal Treasury must be authorized by statute, notwithstanding incomplete or even erroneous information provided, and regardless of extenuating circumstances or claims of fairness. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). In correspondence in December 2005, the Veteran's representative also argued that the effective date should be the "date of his original claim." Unfortunately, this type of argument has been considered and rejected by the Court in previous cases. The Court held that the rule of finality regarding an original claim implies that the date of that claim is not to be a factor in determining an effective date if the claim is later reopened. The Court held that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim. See Sears v. Principi, 16 Vet. App. 244, (2002); see also Livesay 15 Vet. App. at 172 (holding that the plain meaning of § 5110 to be that "the phrase 'application therefor' means the application which resulted in the award of disability compensation that it to be assigned an effective dated under section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the veteran "first sought to reopen his claim"). Accordingly, the Veteran is not entitled to an effective date prior to September 22, 2000. For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than September 22, 2000, for the grant of service connection for schizophrenia. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Hence, the appeal is denied. ORDER Entitlement to an effective date earlier than September 22, 2000, for the grant of service connection for schizophrenia is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs