Citation Nr: 1129155 Decision Date: 08/08/11 Archive Date: 08/16/11 DOCKET NO. 03-17 466 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to an effective date prior to October 5, 1992, for the award of service connection for schizophrenia. 2. Entitlement to an effective date prior to October 5, 1992, for the award of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack INTRODUCTION The Veteran served on active duty from November 1966 to August 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an April 1999 rating decision in which the RO granted service connection for PTSD, effective April 30, 1998. In June 1999, the Veteran filed a notice of disagreement (NOD) with the effective date of the award. A statement of the case (SOC) was issued in February 2000, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2000. In an October 2002 rating decision, the RO granted an earlier effective date of October 5, 1992, for the award of service connection for PTSD with schizophrenia. The Veteran filed an NOD with the effective date of that award in December 2002, and the RO issued an SOC in April 2003. The Veteran filed a substantive appeal in May 2003. In May 2004, the Veteran testified during a hearing before the undersigned Veterans Law Judge in Washington, DC. A transcript of the hearing is of record. In August 2004, the Board denied an effective date prior to October 5, 1992, for the award of service connection for PTSD with schizophrenia. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2005 Order, the Court granted a Joint Motion for Remand filed by counsel for both parties, vacating the Board's August 2004 decision, and remanding the matter on appeal to the Board for further action consistent with the Joint Motion. In March 2006, the Board remanded this matter to the RO for due process development. After completing the requested action, the RO continued the denial of the claim (as reflected in a May 2006 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. In October 2006, the Board again denied an effective date prior to October 5, 1992, for the award of service connection for PTSD with schizophrenia. The Veteran appealed this decision to the Court. In a July 2008 Order, the Court granted a Joint Motion for Remand filed by counsel for both parties, vacating the Board's October 2006 decision, and remanding the matter on appeal to the Board for further action consistent with the Joint Motion. In August 2008, the Board again denied an effective date prior to October 5, 1992, for the award of service connection for PTSD with schizophrenia. The Veteran again appealed the August 2008 Board decision to the Court. In a February 2011 Court memorandum decision, the Court reversed the Board's decision, and remanded the matter to the Board for further proceedings consistent with the decision. In light of the Court's memorandum decision, which, as discussed below, characterizes the Veteran's PTSD and schizophrenia as separately service-connected disabilities with different effective dates of service connection, the Board has characterized the appeal as encompassing the two matters set forth on the title page. Finally, the Board notes that, while the Veteran previously was represented by Disabled American Veterans, in May 2006, the Veteran granted a power-of-attorney in favor of Kenneth M. Carpenter, Esq., with regard to the claims on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board recognizes the change in representation. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims on appeal have been accomplished. 2. In a May 1977 rating decision, the RO denied the Veteran's initial February 18, 1977, claim for service connection for schizophrenia; he was notified of the denial in June 1977, but he did not initiate an appeal. 3. The RO received the Veteran's initial claim for service connection for PTSD on October 5, 1992; in April 1999, the RO granted service connection for PTSD, and, in October 2002, recharacterized the disability as PTSD with schizophrenia and assigned October 5, 1992, as the effective date for the award of service connection. 4. The award of service connection for schizophrenia was, in part, based on official service department records received by VA in 1999 that were unavailable at the time of the denial of the Veteran's February 18, 1977, claim for service connection for schizophrenia. 5. Neither the February 18, 1977, claim for service connection for schizophrenia, nor the May 1977 rating decision denying that claim, contemplated a claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date of February 18, 1977, for the award of service connection for schizophrenia have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2010). 2. The claim for an effective date prior to October 5, 1992, for the award of service connection for PTSD is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Given the favorable disposition of the claim for an earlier effective date for the award of service connection for schizophrenia, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. Regarding the Veteran's claim for an earlier effective for the award of service connection for PTSD, the April 2003 SOC and May 2006 SSOC 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 July 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 award of service connection for PTSD. 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 for service connection for PTSD 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 Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a 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 U.S.C.A. § 5110(a). If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; 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). 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, a Member of Congress, 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 Board notes that revisions were made to 38 C.F.R. §§ 3.156(c) and 3.400(q), effective on October 6, 2006. 38 C.F.R. § 3.156(c) was revised to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records. The substance of 38 C.F.R. § 3.400(q)(2) is now included in the revised § 3.156(c). Prior to the revision, § 3.400(q)(2) governed the effective date of benefits awarded when VA reconsidered a claim based on newly discovered service department records. The prior 3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2) without substantive change. See 70 Fed. Reg. 35388 (2005). The Board therefore finds there is no prejudice to the Veteran in considering the revised 38 C.F.R. § 3.156(c) prior to giving the RO an opportunity to review the appeal. 38 C.F.R. § 19.31 (2010). As in effect prior to October 6, 2006, 38 C.F.R. § 3.156(c) and § 3.400(q)(2), together establish an exception to the general effective date rule in § 3.400 which provides that the effective date of an award of benefits will be the date of claim or the date entitlement arose, whichever is later. The exception applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefit and those records lead VA to award a benefit that was not granted in the previous decision. Under this exception, the effective date of such an award may relate back to the decision of the original claim or date entitlement arose, which ever is later, even though the decision on that claim may be final under § 3.104. As noted above, § 3.156(c) was revised to clarify VA's current practice that when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. The pertinent revisions include removal of the "new and material" requirement in § 3.156(c). Because the rule regarding the effective date of an award of benefits based all or in part on newly-discovered service department records is now included in § 3.156(c), the effective date provision was removed from § 3.400(q). Effective on or after October 6, 2006, 38 C.F.R. § 3.156 (c) provides that notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(i)(3) (2010). In this case, the RO granted service connection for PTSD with schizophrenia effective October 5, 1992, the date of receipt of the Veteran's claim for service connection for PTSD. The Veteran has requested an award of service connection for PTSD and schizophrenia from February 18, 1977, the date he first filed a claim for service connection for schizophrenia. For the reasons given below, in light of the points raised in the Court's February 2011 memorandum decision, the Board finds that the Veteran is entitled to his requested effective date for the award of service connection for schizophrenia of February 18, 1977, but that there is no legal basis for assignment of an effective date prior to October 5, 1992, for the award of service connection for PTSD. The basic facts in this case are not in dispute. The record reflects that the Veteran filed an initial claim for service connection for schizophrenia on February 18, 1977. In a May 1977 rating decision, the RO denied service connection for paranoid schizophrenia; the Veteran was notified of the denial in June 1977, but he did not initiate an appeal. Thus, the May 1977 denial became final as to the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2010). The evidence of record at the time of the May 1977 rating decision included the Veteran's service treatment records, which are negative for psychiatric complaints or findings, as well as records of VA hospitalization in February and March 1977 for an acute schizophrenic episode, and the report of an April 1977 VA examination, at which time the diagnosis was schizophrenia, paranoid type. In October 1980 the Veteran filed a request to reopen his claim for service connection for paranoid schizophrenia, mental disease. A December 1980 letter from the RO informed the Veteran that his claim for service connection for a nervous condition was previously denied and he was notified of that decision in June 1977. The RO informed the Veteran that he would have to submit new and material evidence showing that military service caused a nervous condition, or made such a condition worse. The Veteran did not respond to this letter. In April 1987, the Veteran filed another request to reopen his claim for service connection for a mental problem, on the basis that it was related to in-service exposure to Agent Orange. In an April 1987 letter, the RO requested evidence regarding the Veteran's claim. However, he again did not respond. In February 1991, the Veteran filed a claim for pension based on schizophrenia. On VA examination in July 1991, the diagnosis was schizophrenia, paranoid type. A September 1991 rating decision granted nonservice-connected pension. On October 5, 1992, the Veteran filed an informal claim for service connection for PTSD. Records of private treatment from January 1987 to September 1992 reflect diagnoses of and treatment for paranoid schizophrenia and schizoaffective disorder, bipolar type. Records of VA treatment from September 1992 to May 1993 reflect diagnoses of and treatment for schizophrenia. The Veteran was afforded a VA examination in June 1993. The examiner noted that the Veteran carried a diagnosis of schizophrenia back to 1976. The Veteran described stressors including using a net to pick up body parts of pilots and seeing friends die. The examiner noted that the Veteran had marked paranoid ideation, some of which began in Vietnam, and some after he returned to civilian life. The examiner added that it was impossible to differentiate exactly when the paranoia developed, but it was obvious that he carried a well defined diagnosis of schizophrenia dating back to his 1976 [presumably 1977] hospitalization. The examiner added that it was impossible to differentiate how much of the Veteran's psychosis was due to PTSD-related happenings versus schizophrenia, which was diagnosed after service. The Axis I diagnoses were PTSD; schizophrenia, paranoid type; personality disorder, not otherwise specified; and marijuana abuse, chronic. The examiner commented that the PTSD was somewhat confused with an underlying secondary diagnosis of chronic paranoid schizophrenia. He went on to state, "I strongly suspect that his schizophrenic illness, in lieu that there is no family history of mental illness, was somewhat precipitated by his inability to..." the discussion was "Continued on next page"; however, that page is not of record. The Veteran was also afforded a Social and Industrial Survey for PTSD in June 1993. The social worker's impression was that it was likely that the Veteran met the criteria for a dual diagnosis of paranoid schizophrenia and PTSD. A February 1994 rating decision denied service connection for a psychiatric condition including PTSD on the basis that there was no verification of the claimed stressors. The rating decision further noted that service connection for paranoid schizophrenia was denied as service treatment records were negative for a psychiatric condition and there was no evidence of a psychosis within one year of discharge. The Veteran filed an NOD with this rating decision in April 1994, and an SOC was issued in July 1994; however, he did not file a substantive appeal. Also in July 1994, the RO issued a rating decision denying service connection for PTSD on the basis that, although the Veteran had a clinical diagnosis of PTSD, and had provided copies of his ship's command histories, the evidence was not sufficient to corroborate his claimed stressors. The Veteran filed an NOD regarding the July 1994 rating decision in April 1995. In April 1998, the Veteran filed a request to reopen his claim for service connection for PTSD. In July 1998, the RO made a request to the U.S. Armed Service Center for Research of Unit Records (CURR) (now the U.S. Army and Joint Services Records Research Center (JSRRC)). A March 1999 response from CURR indicated that the Veteran's ship conducted a search and rescue mission for a downed Marine fighter aircraft on March 24, 1967, and several small pieces of the aircraft, bits of clothing, and human remains were recovered, and that the Veteran was received for duty on February 24, 1967. The Veteran was afforded a VA examination in March 1999. The Axis I diagnoses were paranoid schizophrenia and PTSD, related to combat experience. The examiner indicated that he had reviewed the claims file, including numerous Navy records regarding the activities of the Veteran's ship, and opined that the ship's operational requirements could cause PTSD, and probably did in the Veteran's case. The examiner added that the Veteran's schizophrenia was apparently not familial and was not typical, and it was likely that there were PTSD elements which were the atypical factor. Based on the foregoing evidence, the RO granted service connection and assigned an initial 30 percent rating for PTSD, effective April 30, 1998. In a June 1999 VA examination, the examiner who evaluated the Veteran in March 1999 commented that the Veteran's PTSD and paranoid schizophrenia were very interrelated, and it was questionable as to whether he would have one if he did not have the other, adding that he could not "split" these with any certainty, and it seemed that the Veteran had a certain vulnerability which events in service set off, and he now had a psychotic diagnosis in addition to the service-related condition. In light of the above opinion, a September 1999 rating decision granted an initial rating of 100 percent for PTSD including paranoid schizophrenia, effective April 30, 1998, as the RO found that the symptoms of the nonservice-connected paranoid schizophrenia could not be disassociated from the service-connected PTSD. On VA examination in May 2001, the examiner opined that, while the Veteran had suffered sufficient combat stressors sufficient to induce PTSD, the signs and symptoms of paranoid schizophrenia had been in force since the Veteran first began to experience major psychiatric symptoms. This examiner went on to state that, while the Veteran's psychiatric symptoms of PTSD were directly attributable to his experiences in military combat, the diagnosis, course, and prognosis of schizophrenia was less clearly defined as caused by or clearly attributable to military service. On VA examination in February 2002, a panel of two examiners (a psychologist and a psychiatrist) noted that the Veteran had a clearly documented history of both PTSD and paranoid schizophrenia, and that the stressors which resulted in the development of PTSD predated his development of schizophrenia. The examiners opined that the most reasonable conclusion was that the Veteran's paranoid schizophrenia was caused in large part by the stress he experienced while in the Navy. The examiners further opined that no discrimination could be made between the symptoms of PTSD and paranoid schizophrenia. The October 2002 rating decision granted an earlier effective date of October 5, 1992, for the award of service connection for PTSD with paranoid schizophrenia, on the basis that the RO never considered the Veteran's April 1995 NOD and, as such, the claim for service connection for PTSD remained active from the date of the original October 5, 1992, claim. The Veteran has asserted that he is entitled to service connection for PTSD with schizophrenia back to 1977, when he initially filed his claim for service connection for schizophrenia. Specifically, the Veteran's attorney has argued that, because the claim for service connection was reopened and granted based upon the receipt of supplemental service department records from CURR in March 1999, the Veteran is entitled to service connection from February 18, 1977, the date of his original claim, pursuant to 38 C.F.R. § 3.156(c). A. Schizophrenia In light of the points raised in the Court's February 2011 memorandum decision, the Board finds that the Veteran is entitled to his requested effective date of February 18, 1977, for the award of service connection for schizophrenia. The Court concluded that the medical evidence of record, and particularly the report of the February 2002 VA examination involving the panel of a psychologist and a psychiatrist, "conclusively establishe[s] that the same stressors that caused the [Veteran's] development of PTSD, also caused him to suffer from schizophrenia," and that "the medical evidence in the record [] conclusively establishes that the in-service stressors were a casual factor in the development of the [Veteran's] schizophrenia." Memorandum Decision, pp. 5, 7. The Court further concluded that, in light of the service records that were added to the record when he filed his reopened claim for schizophrenia in 1992, 38 C.F.R. § 3.156(c) authorized an effective date in February 1977 for the award of service connection for schizophrenia. In doing so, the Court noted that 38 C.F.R. § 3.156(c) authorizes an effective date for the award of service connection of the date VA received a previously denied claim where the award was made based all or in part on official service department records received by VA that were unavailable at the time that VA previously decided the claim. The Court emphasized that the regulation clearly provided that the new service records did not have to be the sole basis for the award of service connection, and that it was sufficient that the award was made "in part" because of the newly acquired service records. Thus, although there was no evidence suggesting a nexus between schizophrenia and service prior to October 5, 1992, and the newly acquired records from CURR did not establish any such nexus, such newly acquired records established the occurrence of the in-service events, to which the medical evidence subsequently established that the Veteran's schizophrenia was related, which provided the basis of the RO's award of service connection for schizophrenia. Therefore, the award of service connection for schizophrenia was, in part, based on official service department records received by VA that were unavailable at the time of the denial of the Veteran's February 18, 1977, claim for service connection for schizophrenia. Accordingly, under 38 C.F.R. § 3.156(c), the effective date assigned relates back to February 18, 1977, the date of the original claim. In light of the above, the Veteran's requested effective date for the award of service connection for schizophrenia of February 18, 1977, must be granted. As a final matter, the Board notes the Court's instructions that, on remand, the Board should determine the proper disability rating that should be assigned for the Veteran's schizophrenia between February 1977 and October 1992. See Memorandum Decision, p. 8. However, the Board notes that, in implementing the award of an earlier effective date, the RO will determine the appropriate rating for the disability for the relevant time period. B. PTSD Considering the pertinent evidence in light of the governing legal authority, and in light of the points raised in the Court's February 2011 memorandum decision, the Board finds that there is no legal basis for assignment of an effective date prior to October 5, 1992, for the award of service connection for PTSD. As noted above, when a claim is reopened and granted on the basis of service department records that were not of record at the time of the original denial of service connection, the effective date for the award of service connection is based on the date entitlement arose or the date of receipt of the previously denied claim, whichever is later. See 38 C.F.R. § 3.156(c). The Veteran first initiated a claim for PTSD on October 5, 1992, when he filed his informal claim. See 38 C.F.R. §§ 3.1 (p), 3.151(a), 3.155. Since this was not within one year after his separation from service, October 5, 1992, is the earliest effective date which may be assigned for an award of service connection for PTSD. The evidence relative to PTSD does not serve to reopen the earlier, February 18, 1977, claim, because that prior denial was not for service connection for PTSD, but for service connection for schizophrenia. Neither the February 18, 1977, claim, nor the May 1977 rating decision denying that claim, contemplated a claim for service connection for PTSD. In fact, there is no evidence of record showing a diagnosis of PTSD until the June 1993 VA examination, despite the fact that the Veteran received VA psychiatric treatment from September 1979 to May 1993. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Ephraim v. Brown, 82 F. 3d 399, 401 (Fed. Cir. 1996) that a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, can not be the same claim when it has not been previously considered. See also Boggs v. Peake, 520 F. 3d 1330 (2008). The Board notes that the disabilities at issue in Ephraim were depressive neurosis and PTSD. The Board has considered the medical evidence of record, in particular, the medical opinions addressing the relationship between the Veteran's PTSD and paranoid schizophrenia. While the medical evidence demonstrates a clear history of schizophrenia since 1977, and suggests a relationship between schizophrenia and PTSD, none of this medical evidence indicates that the Veteran's diagnoses of paranoid schizophrenia prior to October 5, 1992, would have been more properly diagnosed as PTSD. In this regard, the June 1993 VA examiner stated only that it was impossible to differentiate exactly when the paranoia developed, but it was obvious that the Veteran carried a well defined diagnosis of schizophrenia dating back to his 1976 [presumably 1977] hospitalization; and that it was impossible to differentiate how much of the Veteran's psychosis was due to PTSD-related happenings, versus schizophrenia which was diagnosed after service. The March 1999 examiner stated that it was likely that there are PTSD elements which were the atypical factor of the Veteran's schizophrenia. In June 1999, the same examiner described these two diagnoses as very interrelated, and indicated that it was questionable as to whether the Veteran would have one if he did not have the other, adding that he could not "split" these with any certainty, and it seemed that the Veteran had a certain vulnerability which events in the service set off, and he now had a psychotic diagnosis in addition to the service-related condition. While the foregoing, along with the findings and opinions contained in the reports of the May 2001 and February 2002 VA examinations, indicates that the symptoms of PTSD and paranoid schizophrenia cannot be distinguished, these medical opinions do not indicate that the diagnoses of schizophrenia of record at the time of the previous final denial would have been more properly diagnosed as PTSD. In the absence of competent medical evidence indicating that the Veteran's previously diagnosed paranoid schizophrenia was in fact more properly diagnosed as PTSD, there is simply no medical evidence that the Veteran had PTSD at the time of the previous final denial, and the Veteran's October 1992 claim for service connection for PTSD is distinct and separate from his previously disallowed claim for schizophrenia. See Boggs, 520 F. 3d 1330. The Board notes that this conclusion is consistent with the Court's February 2011 memorandum decision, which acknowledges that, while the Veteran's claim on appeal for schizophrenia was a reopened claim that had been denied preciously in 1977, his October 1992 claim for disability compensation for PTSD was a new claim, and, therefore, an earlier effective date than October 5, 1992, for the award of service connection for PTSD is not warranted. See Memorandum Decision, pp. 6, 8. 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 award of service connection for PTSD earlier than October 5, 1992, is assignable, the claim for an earlier effective date for the award of service connection for PTSD 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 of February 18, 1977, for the award of service connection for schizophrenia is granted. An effective date prior to October 5, 1992, for the award of service connection for PTSD is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs