Citation Nr: 1302262 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-29 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than June 16, 1995 for the grant of service connection for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. On April 25, 1973, a claim seeking service connection for a "nervous breakdown" was received by VA; the claim was denied in an unappealed May 1973 rating decision finding the Veteran's psychiatric disorder was a developmental defect not subject to service connection. 2. On January 17, 1995, a claim seeking reconsideration of service connection for a psychiatric condition was received by VA; the Veteran was notified that the claim was denied in March 1995 decision finding no new and material evidence had been submitted. 3. On June 16, 1995, the Veteran provided a release form for medical records in support of his claim and also requested a hearing to provide additional testimony in support of his claim. 4. The June 16, 1995 correspondence from the Veteran was within the appellate time frame for the March 1995 denial and, therefore, stemmed from his original January 17, 1995 claim. CONCLUSION OF LAW The criteria for entitlement to an effective date of January 17, 1995, but no earlier, for the grant of service connection for schizophrenia have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(b), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim stems from a June 2006 rating decision that granted service connection for schizophrenia and assigned an initial rating of 100 percent, effective June 16, 1995. Thereafter, the RO provided additional notice to the Veteran in October 2006 with regard to the laws and regulations necessary to substantiate earlier effective date claims. The earlier effective date claim was then denied in a January 2007 rating decision. The October 2006 notice contained all information necessary to satisfy the VA's duty to notify. Id. The Veteran's service treatment records, private medical records, and VA medical records are in the file. Additionally, the Veteran submitted evidence that he applied for Social Security Administration disability benefits in April 1975. The records associated with his application for benefits and/or awards are not of record and were not of record at the time of the prior rating decisions. Determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings. Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. Military records and VA records, for example, are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In contrast, federal records from other federal agencies are not "constructively" of record. These documents, then, were not of record at the time prior decisions were made and, therefore, are not relevant to the effective date issue on appeal here. For these reasons, the Board finds no prejudice in proceeding. The Veteran has also not identified any other pertinent evidence that remains outstanding. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Earlier Effective Date In general, where a claim for service connection is filed more than one year after separation from active service, the effective date for the grant of service connection is the date of receipt of claim, or the date entitlement arose, "whichever is later." 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b) (emphasis added). The Veteran claims entitlement to an effective date of April 25, 1973, the date he originally filed his claim. At that time he claimed he had a nervous breakdown in 1971, within one year of separation from the military. The claim was denied in a May 1973 rating decision, but the Veteran indicates he did not have the mental capacity to understand to appeal the decision. His representative also argues the denial was done without VA obtaining the 1971 hospitalization records. The claims folder confirms the Veteran filed his initial claim for service connection in April 1973 indicating he had a nervous breakdown in 1971. The RO denied the claim in a May 1973 rating decision finding the Veteran's psychiatric disorder was a developmental defect not subject to service connection. The Veteran was notified of this decision but did not appeal. Accordingly, that decision is final. 38 U.S.C.A. § 7105 (West 2002). Thereafter, there is no evidence of record until January 17, 1995, over two decades later. At that time, the Veteran filed a claim for reconsideration of service-connected for a psychiatric disorder indicating he did not have the mental capacity at the time of the 1973 denial to understand to appeal. He also claimed never receiving notice of the denial. A letter from the RO in March 1995 notified the Veteran that his claim to reopen the issue of entitlement to service connection for a psychiatric disorder was denied indicating that the Veteran failed to submit new and material evidence. In response, the Veteran filed a release for private medical records and asked for a hearing in a June 16, 1995 statement. In June 2006, a rating decision granted the claim of entitlement for service connection for schizophrenia, and assigned a June 16, 1995 effective date, dating back to this correspondence. The Veteran claims entitlement to an effective date of April 25, 1973, the date he originally filed his claim for service connection for a psychiatric disorder. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a) (2012). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision is final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b)(c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2012). With regard to the May 1973 rating decision, no correspondence or evidence was received from the Veteran until 1995, over two decades later. The Veteran claims he never received notice of the denial, but the record confirms notice of the denial was sent to the Veteran's last known address on May 25, 1973. See Butler v. Principi, 244 F.3d. 1337, 1340 (2001) (holding that the application of the presumption of regularity does not conflict with the pro-Veteran nature of the Veterans benefits adjudication system). The Veteran also claims, with regard to the May 1973 denial, he lacked the mental capacity to understand the appeals process. The Board has considered his argument, but finds there is no provision of law that provides an exception in this case. Further, there are no medical records corroborating the Veteran's statement that he lacked the legal capacity to understand the appeal process. The Veteran's hospitalization was in 1971, two years prior to the Veteran initially filing the claim. There are only two exceptions to the rule of finality of VA decisions; challenges based on clear and unmistakable error (CUE) in a prior, final decision and claims based on new and material evidence. 38 U.S.C.A. §§ 5108, 5109A, 7111 (West 2002), Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). Although the representative argued that the 1973 denial was done without obtaining the 1971 hospitalization records, the Veteran and his representative's arguments do not amount to an allegation of CUE nor has a claim for CUE in the 1973 rating decision been filed. CUE is a very specific and rare kind of error and if the claimant-appellant wishes to reasonably raise CUE there must be "some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity. Id. The Veteran has never with any specificity alleged CUE with a past rating decision. Rather, he merely notes he initially filed a claim in April 1973, which was denied in May 1973 without the VA ever obtaining medical evidence. The Veteran, however, did not send a release form for any records until June 1995. The medical records were then obtained and considered. Any breach of VA's duty to assist cannot form the basis for a claim of CUE. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran's representative's arguments simply do not amount to alleging CUE as to disturb the finality of any past unappealed rating decision. In contrast, the Veteran filed a claim on January 17, 1995, for "reconsideration" of the previous denial for service connection for a psychiatric disorder. A letter from the RO in March 1995 notified the Veteran that the claim was denied as no new and material evidence was submitted. Correspondence from the Veteran was received on June 16, 1995, the Veteran submitted additional evidence in attempt to reopen his claim. The claim of entitlement to service connection for a psychiatric disorder was granted by the Board in a May 2006 decision. The current effective date of June 16, 1995 is based on the date the Veteran identified new evidence. However, new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). At the time of the June 16, 1995 correspondence, the appeal period for the March 1995 denial to reopen the Veteran's claim had not expired. For these reasons, the appropriate effective date for the grant of entitlement for service connection for schizophrenia is January 17, 1995, the date of the Veteran's claim for "reconsideration" of the previous denial for service connection for a psychiatric disorder. . In short, the claim of entitlement to service connection for a psychiatric disorder was previously denied in a 1973 rating decision and the Veteran did not appeal. Accordingly, that decision is final. On January 17, 1995 the Veteran sought to reopen the claim of entitlement to service connection for a psychiatric disorder, but this claim was denied in March 1995 because the Veteran failed to submit new and material evidence. In response, and well within the appellate time frame, the Veteran identified new evidence in an effort to reopen the issue of entitlement to service connection for a psychiatric disorder on June 16, 1995. The claim of entitlement to service connection for a psychiatric disorder was eventually granted by the Board in May 2006 based on the submission of new and material evidence. As stated above, the effective date is limited to the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). In light of the circumstances presented here, the Board concludes the appropriate effective date is January 17, 1995, the date of claim, as opposed to June 16, 1995, the date of receipt of new evidence. 38 C.F.R. § 3.156(b). There is no evidence of a pending claim prior to January 17, 1995. Therefore, there is no legal basis to award an effective date prior to January 17, 1995. See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b). The Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation, and therefore, an earlier effective date for the grant of entitlement to service connection for schizophrenia is not warranted. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b), (q), (r). ORDER An effective date of January 17, 1995, but no earlier, for the grant of service connection for schizophrenia is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs