Citation Nr: 1309463	
Decision Date: 03/20/13    Archive Date: 04/01/13

DOCKET NO.  07-32 651	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an effective date earlier than October 31, 1991, for the award of nonservice-connected pension benefits.

2.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for paranoid schizophrenia. 


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from May 1973 to January 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for an earlier effective date prior to October 31, 1991, for the award of nonservice-connected pension benefits.  (As will be further discussed below, the actual rating decision being appealed is ultimately an August 1999 RO rating decision that determined on the basis of clear and unmistakable error (CUE) that the appropriate effective date for the Veteran's award of nonservice-connected pension benefits was October 31, 1991.)    

In a July 2012 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated a January 2011 Board decision that confirmed the October 31, 1991 effective date for the appellant's award of nonservice-connected pension and remanded the matter to the Board for re-adjudication consistent with its memorandum decision.  After providing the Veteran and his representative with the appropriate time to submit additional evidence and argument in support of the appeal, the case was returned to the Board in December 2012.

For the reasons that will be discussed in the REMAND portion of this decision, the issue of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for paranoid schizophrenia is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

The Veteran submitted correspondence that constituted a claim for nonservice-connected pension benefits on February 16, 1989.


CONCLUSION OF LAW

The requirements for an effective date of February 16, 1989, for eligibility for a permanent and total disability rating for pension purposes have been met.  38 U.S.C.A. §§ 5110, 5102(b) (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) and VA's Duty to Notify and Assist. 

VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The Board has considered whether further development and notice under the VCAA or other law should be undertaken.  However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the Court held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  The Board finds that such is the case as to the earlier effective date issue here on appeal.  The facts in this case, which involves the assignment of an effective date, are not in dispute.  Application of pertinent provisions of the law and regulations will determine the outcome.  No amount of additional evidentiary development would change the outcome of this case; therefore no VCAA notice is necessary.  See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA is notice not required where there is no reasonable possibility that additional development will aid the claimant).  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004)  (A veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law.)

Despite the foregoing, the RO explained VA's and the Veteran's respective duties for obtaining evidence and the requirements for establishing entitlement to nonservice-connected pension benefits in a December 2006 letter.  In addition, general due process concerns have been satisfied in connection with this appeal.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal and has retained the services of a representative to guide him through the appellate process.  Accordingly, the Board will proceed to a decision on the merits.

Preliminary matters

For the reasons discussed below, the Board has proper jurisdiction over the present appeal.  By history, the Board notes that the Veteran was granted a total rating for nonservice-connected pension purposes in a February 1998 rating decision, which assigned an effective date of March 2, 1995, for the pension award.  Subsequently, an August 1999 rating decision determined that there was CUE in the assignment of the March 1995 pension effective date and, on this basis, revised the effective date for the Veteran's pension award to commence on October 31, 1991.  Notice of this determination was provided to the Veteran in correspondence dated in August 1999.  Thereafter, in January 2000, the RO received the Veteran's timely notice of disagreement (NOD) regarding the effective date assigned.  Although no statement of the case was furnished in response to this NOD, the August 1999 rating decision remained pending and in appellate status.  38 C.F.R. § 20.302(a). 

In September 2006, the Veteran submitted correspondence that, essentially, expressed dissatisfaction with the effective date assigned for his pension award.  The RO adjudicated the matter in March 2007 and confirmed the October 31, 1991 effective date for his pension award, which is now on appeal before the Board.  

The Board denied the Veteran's claim in a January 2011 appellate decision, which the Veteran then appealed to the Court.  In a July 2012 memorandum decision, the Court vacated the January 2011 Board decision and determined that the Veteran did not, in fact, submit a freestanding earlier effective date claim as was argued by the VA Secretary.  (In Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) and Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the Federal Circuit and the Court did not recognize freestanding earlier effective date claims, holding that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision, as to allow such claims would vitiate the rule of finality.)  In the present case, the Court determined that the Veteran's timely-filed NOD of the August 1999 rating decision that assigned an effective date of October 31, 1991 for his pension award placed this issue in pending appellate status.  The Court further determined that, notwithstanding that the RO did not furnish a statement of the case and that the Veteran did not thereafter perfect his appeal with a substantive appeal as procedurally prescribed by 38 C.F.R. § 20.200, the Board's actions in reviewing the effective date issue in its vacated January 2011 decision constituted a waiver of the substantive appeal requirement and an exercise of jurisdiction over the effective date claim.  See Beyrle v. Brown, 9 Vet. App. 24, 28 (1996); Percy v. Shinseki, 23 Vet. App. 37, 44 (2009).  Thusly, in view of the foregoing determinations of the Court, the actual rating decision ultimately on appeal is the August 1999 RO decision that assigned a revised effective date of October 31, 1991 for the Veteran's award of nonservice-connected pension.

Entitlement to an earlier effective date prior to October 31, 1991, for nonservice-connected pension benefits.

VA pension benefits are provided for a Veteran with honorable active military service of 90 days or more during a period of war (or discharge or release from service during a period of war for a service-connected disability) who is permanently and totally disabled from a nonservice-connected disability not the result of the Veteran's willful misconduct and who meets certain annual income limitation requirements.  38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3(a)(3) (2012). 

For the purposes of pension, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite.  Thus, nonservice-connected pension benefits may be assigned where the nonservice-connected disabilities schedular ratings are less than total when the disabled person is, in the judgment of the adjudicator, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more.  38 C.F.R. § 4.16(a) (2012). 

Generally, the effective date of an award based on an original claim, a claim reopened after final disallowance, or a claim for increase, compensation, dependency and indemnity compensation, or pension shall not be earlier than the date of receipt of the claim.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). 

With regard to disability pension benefits, the effective date shall not be prior to the date entitlement arose.  38 C.F.R. § 3.400(b)(1).  For a pension claim received after October 1, 1984, the effective date will be the date of receipt of the claim.  However, if within one year from the date on which the Veteran became permanently and totally disabled, the Veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the Veteran's own willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which the Veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the Veteran became permanently and totally disabled, whichever is to the advantage of the Veteran.  Extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim.  38 C.F.R. § 3.400(b)(1)(ii) (2012). 

A claim is 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) (2012). 

Any communication or action, indicating an 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 an 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2012); Norris v. West, 12 Vet. App. 413 (1999).  

In a Board decision dated December 23, 1986, the Veteran's claim of entitlement to service connection for a chronic psychiatric disability and a permanent and total disability rating for pension purposes was denied.  This decision of the Board is final.  See 38 C.F.R. § 20.1104 (2012). 

A VA Form 23-22, signed and executed by the Veteran in September 1988, designated power of attorney over the Veteran's claim to his current representative, Paralyzed Veterans of America (PVA).

On February 16, 1989, the RO received a VA Form 21-527 Income-Net Worth and Employment Statement (In Support of Claim for Total Disability Benefits), signed by the Veteran, in which he indicated that he was unemployed but otherwise unaccompanied by any correspondence indicating with specificity that a particular benefit (i.e., compensation or pension) was being sought.  In a letter received by the RO in March 1989, the Veteran indicated that he had submitted an (unspecified) claim in December 1988, and that he wished that his claim be stopped.  (Review of the claims file shows that in the time since the December 1986 Board decision, no correspondence was received by VA prior to February 16, 1989.)  The March 1989 letter included a statement acknowledging PVA as his representative and additional language to the effect that the Veteran was withdrawing his claim because of fear that his life was being threatened.  Contemporaneous clinical evidence indicates that the Veteran was receiving treatment for a diagnosis of chronic paranoid schizophrenia.  In a letter dated in April 1989, the RO notified the Veteran that action on his (unspecified) claim had been discontinued as requested. 

Thereafter, the claims file shows that for the period immediately prior to October 31, 1991, the Veteran submitted multiple correspondence to the RO, in which he made statements mentioning the word "claim" but did not make any further clarification as to what particular VA benefit he was claiming, or otherwise made specific requests to reopen his previously denied claim of entitlement to service connection for a chronic psychiatric disability.  Particularly confusing was the Veteran's submissions of correspondence requesting that VA stop processing his (unspecified) claim requests.  

Ultimately, on October 31, 1991, VA received a letter from the Veteran titled "Reopen Claim for Non-Service Connected Disability as filed October 1988."  In this letter, he specifically requested that his claim for nonservice-connected disability benefits be reopened, making reference to a prior claim for nonservice-connected disability that he alleged had been filed in October 1988.  (As previously stated, a review of the claims file shows no such claim was received by VA in 1988.)  On basis of the date of receipt of this statement, the present effective date for the Veteran's pension award was assigned.

The Board has considered the correspondence associated with the Veteran's claims file and observes that although the Veteran submitted no specific clarification of the benefit being sought in his application received on February 16, 1989, the VA Form 21-527 that he submits is an agency prescribed form pertaining to claims for VA total rating benefits, of which this includes nonservice-connected pension.  38 C.F.R. § 3.151.  In any case, the absence of such clarification would make the aforementioned submission at least constitute an incomplete application for a VA benefit; as such, it thus became incumbent on VA by action of law to notify the Veteran and his representative of the information necessary to complete the application.  See 38 U.S.C.A. § 5102(b).  As the claims file indicates that no such notice was ever provided by VA to either the Veteran or his designated representative following receipt of the aforementioned VA Form 21-527 up to when he submitted his specific claim for pension on October 31, 1991, the Board cannot concede that the Veteran had been given notice of what was needed to complete his claim, an opportunity to take timely action to complete it, and in the absence of such action, that he abandoned his claim.  Therefore, the Board finds that there was a pending claim for a total rating for purposes of nonservice-connected pension that was filed on February 16, 1989, and that the correspondence received on October 31, 1991, is a continuation of that pending claim, which merely clarified the Veteran's intent and completed his application.  

The correspondence received in March 1989 does not constitute a withdrawal of the February 16, 1989 application, as the language of the March 1989 letter made specific reference only to a non-existent claim allegedly filed in December 1988.  Thereafter, between March 1989 and August 1989, the Veteran intermittently filed informal claims for unidentified VA benefits, followed by requests to withdraw such unspecified claims.  While there is evidence of record that the Veteran was undergoing treatment for a psychiatric disorder manifested by severe paranoia, the Veteran's competence or mental capacity to be able to expressly withdraw his claims is not germane to the primary issue on appeal, which is whether or not he filed an actual claim for nonservice-connected disability pension prior to October 31, 1991.  

A careful analysis of the language of all correspondence received from the Veteran between the date of the final Board decision denying nonservice-connected pension on December 23, 1986, and the present effective date of October 31, 1991, for his pension award, shows that no specific claim for nonservice-connected pension was ever expressly submitted to VA.  The majority of the correspondence received from the Veteran during this period only refers to a "claim" in a general way, without identifying the specific benefit sought.  Thus, these informal correspondences do not meet the standard of a proper informal claim, as an informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a) (2012).  The Board therefore regards them to be non-claims, and as such there is no actual "claim" to withdraw, notwithstanding any subsequent statements submitted by the Veteran to that effect. This also includes the September 1989 statement requesting VA to stop a nonservice-connected disability claim that had not, in fact, ever been previously filed.  Otherwise, the informal correspondence pertains to a specific claim for service connection for a chronic psychiatric disability, which is by definition different from a pension claim. 

As noted above, the Veteran's February 1989 submission to the RO of a VA Form 21-527 in support of a claim for total rating benefits was an incomplete application and VA had an obligation under the law to provide the Veteran with notice of the information needed to complete this application.  See 38 U.S.C.A. § 5102(b).  In the absence of such notification prior to VA's receipt of a specific claim for nonservice-connected pension benefits on October 31, 1991, the Board finds that there was a pending incomplete claim for VA benefits relating to a total disability rating from February 16, 1989, which was thereafter made complete by the October 1991 correspondence clarifying the benefit sought (i.e., nonservice-connected pension).  Otherwise, the claims file contains no correspondence indicating a claim or an intent to file a claim for any VA benefit, specified or unspecified, since the final Board decision of December 23, 1986, but prior to February 16, 1989.         

In view of the foregoing discussion, the Board concludes that an effective date of no earlier than February 16, 1999, can be assigned as the effective date for nonservice-connected pension benefits as this is the earliest date of receipt by VA of the claim for this specific benefit since the date of the prior final Board decision of December 1986, which denied pension.  Thus, it is the appropriate effective date for the grant of nonservice-connected pension benefits.  See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.155(a), 3.400.  To this extent, the benefit sought on appeal is granted.


ORDER

An effective date of February 16, 1989, for the award of nonservice-connected pension benefits is granted.


REMAND

The Board's review of the Veteran's claims file shows that in an October 2011 rating decision, the RO determined, inter alia, that the Veteran did not submit new and material evidence to reopen his previously denied claim of entitlement to service connection for paranoid schizophrenia.  Notice of this adverse decision was furnished to the Veteran in correspondence dated November 5, 2009.  Thereafter, on November 2, 2010, the RO receive correspondence from the Veteran in which he expressed disagreement with the October 2011 decision.  This correspondence was received just within the one-year time limit for filing an NOD and is therefore timely.  38 C.F.R. § 20.302(a) (2012).        

To date, however, the RO has not issued a statement of the case (SOC) with respect to the above issue in response to the Veteran's timely notice of disagreement.  Accordingly, the Board is required to remand this issue so that the Veteran may be provided with a SOC that addresses this matter.  See Manlincon v. West, 12 Vet. App. 238 (1999).  Thereafter, the Board will have appellate jurisdiction over this issue only if the Veteran files a timely substantive appeal.  See 38 C.F.R. § 20.302(b) (2012).

Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC for the following action:

The RO should provide an SOC to the Veteran addressing the issue of whether new and material evidence has been submitted to reopen his previously denied claim of entitlement to service connection for paranoid schizophrenia.

The Veteran must be advised of the time limit in which he may file a substantive appeal with respect to the aforementioned new and material evidence claim.  Then, only if an appeal is timely perfected with respect to this issue, should it be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome in this issue by the action taken herein.

The appellant has the right to submit additional evidence and argument on the matter 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. 2012).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs