Citation Nr: 1314977	
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  10-04 544	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an effective date earlier than February 27, 1998, for the grant of service connection for paranoid schizophrenia.


REPRESENTATION

Appellant represented by:	John F. Cameron, Esq.


ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel



INTRODUCTION

The Veteran had active service from November 1971 to December 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

By way of addressing the background procedural history of this claim, the Veteran filed a petition to reopen a claim for entitlement to service connection for paranoid schizophrenia on February 27, 1998.  The petition was denied in a July 1998 rating decision based on the finding that no new and material evidence had been submitted.  The Veteran appealed his claim to the Board and in an April 2005 decision the Board denied reopening the claim for entitlement to paranoid schizophrenia, finding that no new and material evidence had been submitted.  The Veteran appealed his claim to the United States Court of Appeals for Veterans Claims (Court) and pursuant to a December 2006 order granting a November 2006 joint motion for remand, the April 2005 Board decision was vacated and the matter returned to the Board for further development and readjudication.

In an October 2007 decision, the Board reopened the Veteran's claim of entitlement to service connection for schizophrenia and remanded the matter for additional development.  In the subsequent May 2008 rating decision, noted above, the RO granted entitlement to service connection for paranoid schizophrenia and assigned a disability rating of 100 percent, effective February 27, 1998.  The current appeal followed therefrom.

The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.



FINDINGS OF FACT

1.  The Veteran's original claim for entitlement to service connection for an acquired psychiatric disorder, specifically for a nervous condition, was filed in March 1976, more than one year after his separation from service, and entitlement to service connection for schizophrenia was denied by the RO in an unappealed June 1976 rating decision.

2.  The Veteran filed to reopen the previously-denied claim of entitlement to service connection for paranoid schizophrenia on February 27, 1998.  In a May 2008 rating decision, the RO granted service connection for paranoid schizophrenia and assigned a 100 percent disability rating, effective February 27, 1998.

3.  Prior to the February 1998 request to reopen there were no pending requests for service connection that remained unadjudicated, nor a pending notice of disagreement with the June 1976 rating decision.


CONCLUSION OF LAW

The criteria for an effective date prior to February 27, 1998 for the award of service connection for paranoid schizophrenia have not been met.  38 U.S.C.A. § 5110 (West 2002 and Supp. 2012); 38 C.F.R. § 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

Preliminarily, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a veteran of the information and evidence needed to substantiate a claim, as well as the duty to notify the Veteran of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a veteran in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the Veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each element of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the Veteran is challenging the initial effective date assigned following the grant of service connection.  The Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the effective date or disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The VCAA also requires VA to make reasonable efforts to help a veteran obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty to assist contemplates that VA will help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and opinion when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

In the present case, the Board finds that the duty to assist has been fulfilled.  The outcome of this appeal turns on a determination as to the date a claim of service connection was filed as it relates to receipt of new and material evidence.  The Veteran's various applications for benefits are of record, as are all the pertinent procedural documents.  There is no suggestion that additional evidence, relevant to these matters, exists and can be procured.  No further development action is required.

In that regard, the Board has considered the March 2009 contention of the Veteran's attorney that VA treatment records from December 17, 1973 to June 5, 1995 needed to be associated with the claims file.  The Board notes that pursuant to prior requests, many of those records have been associated with the claims file or determined to be unavailable.  Moreover, as noted above, the Veteran's claim turns on a determination as to the date a claim of service connection was filed as it relates to receipt of new and material evidence and, significantly, VA medical records cannot constitute an informal claim unless service connection has previously been established, or has been denied on the basis that the condition is noncompensable.  MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b) (2012).  In this case, the Veteran's claim for entitlement to service connection for schizophrenia was not denied on the basis that the condition was noncompensable.  Therefore, the fact that the Veteran received regular treatment for schizophrenia in a VA facility does not constitute an informal claim and has no bearing on this matter.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(b) (2012).

In this case, the Veteran separated from active service in December 1973.  He did not submit a claim of entitlement to service connection for an acquired psychiatric disorder within one year from his discharge.  Therefore, assignment of an effective date back to the day following discharge is not possible.  Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later.

The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p) (2012).

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.  See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  See 38 C.F.R. § 3.155 (2012).

On March 22, 1976, the Veteran brought a claim for "nervousness" that he claimed had started in 1972.  A June 1976 rating decision denied service connection for schizophrenia, noting that the Veteran's service treatment records showed no complaints or treatment for a nervous condition and that on separation he had a normal psychiatric examination.  The rating decision also discussed treatment records for the Veteran's hospitalization in March 1976, at which time he attributed current flashbacks to drugs taken two years previously.  At that time, the Veteran was diagnosed with schizophrenia.  The RO mailed the rating decision to the Veteran in July 1976.

Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a) (2012).  The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2012).  In this case, Board acknowledges the contention of the Veteran's representative that the Veteran submitted an NOD on July 13, 1976; however, such a filing is not of record.  Moreover, there is otherwise no correspondence of record expressing disagreement with the denial of service connection during the appellate time period.  The representative has not submitted evidence of such a filing.  Therefore, as it was not appealed, the June 1976 rating decision is final. 

The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2).

In January 1989, the Veteran submitted another application for compensation or pension.  At that time, he reported that the nature of the sickness, disease, or injury was "paranoid phizophrenic [sic]" and stated that he had a "mental illness."  In a January 1989 letter, the RO indicated that it could not adjudicate the Veteran's claim until he had submitted additional information, to include from the Social Security Administration (SSA), private treatment providers, VA treatment periods, or other evidence to show that the claimed disability had been treated since service.  

The Veteran failed to respond until August 1990, at which time he indicated that he had been hospitalized in August 1990 at a VA facility and that he was in receipt of SSA compensation benefits.  The Veteran requested that VA "re-open my claim for a SC disability on my nerve problems."  In September 1990, the Veteran submitted an application for compensation or pension for "paranoid type schizophrenia."  In November 1990, the RO sent the Veteran a letter regarding reconsideration of his claim for service connection for a nervous condition.  The letter explained the basis of the prior June 1976 rating decision that denied entitlement to service connection and explained that if he wanted to reopen the claim the Veteran needed to submit, "the dates, places, treating physician, and facilities from which you have received treatment for this condition.  This information also needs to include diagnosis, prognosis, and recommended treatment for this condition.  This information needs to substantiate the fact that this condition occurred in or was aggravated by your military service."

In January 1991, the RO denied entitlement to non-service-connected pension and provided the Veteran with his appellate rights.  The Veteran responded in March 1991 that he would like to be "reconsidered for non-service-connected disability."  Thereafter, in June 1991, the Veteran submitted a statement in which he indicated, "I would like to send in a Notice of Disagreement on my recent denial of VA benefits."  On its face, this statement could have been construed as being in response to the November 1990 letter discussed above; however, when viewed in context with the rest of the statement, it is clear to the Board that the Veteran was disagreeing with the January 1991 rating decision that denied entitlement to non-service connected pension benefits.  The Veteran specifically referred to the content of the January 1991 decision in his letter.  Furthermore, he also stated in that letter, "I would also like you to review my Mil. Med. Records for treatment of my nerve problems I consider this as a request for a SC rating on my nerves"  (emphasis added).  Later in June 1991, the RO responded by letter indicating that service connection was previously denied for a nervous condition and that to reopen the claim the Veteran needed to furnish evidence showing that the nervous condition existed while on active duty and that the condition has since existed to the present.  Once this evidence was received, the RO would reconsider the claim.

The Veteran responded in July 1991 with what he characterized as a "Notice of Disagreement" and submitted additional medical and SSA information.  Several days later, still in July 1991, the Veteran submitted a statement, "asking for service connection on mental disturbance."  The Veteran specifically reported symptoms, including depression and stress.  In response, the RO issued an August 1991 rating decision that found that the new evidence submitted did not represent new and material evidence to establish service connection for a nervous condition because, "The records fail to show treatment for a nervous condition while the veteran was on active duty or within one year following his date of discharge."  The RO provided the Veteran with the rating decision in September 1991.

In March 1995, the RO received a letter from the Veteran that it interpreted as a petition to reopen his claim for entitlement to service connection for a nervous condition or ultimately an attempt to file a notice of disagreement with a prior decision in that matter.  In a March 1995 letter, the RO indicated that his nervous condition had been denied in June 1976 and that, as he did indicate disagreement with that decision within one year, it had become final.  

The Veteran filed a response later in March 1995 in which he indicated that he was "deeply hurt[]" by the letter and reiterated that he had filed a claim for service connection for a nervous condition in 1976.  He stated that in 1994 while in the hospital he had been service-connected with a rating of 100 percent for schizophrenia, but that before he could leave the hospital another patient "stole my claim."  In an August 1995 letter, the RO again explained the July 1976 notification of the denial of his claim and the failure to file an NOD within one year of the rating decision.  As such, "to reopen your claim for service connection, you should submit evidence showing that the condition was aggravated by military service."

In November 1995, the Veteran submitted a claim that was interpreted to be for entitlement to service connection for posttraumatic stress disorder (PTSD).  That claim was denied in a January 1996 rating decision.  

On February 27, 1998, the Veteran submitted an application for compensation or pension, which is the current effective date for the Veteran's service-connected paranoid schizophrenia.

The Veteran, through his attorney, asserts the effective date for the grant of service connection should date back to at least March 19, 1976, at which time the Veteran filed his initial claim for service connection benefits.  The basis for that assertion is that the Veteran submitted a July 13, 1976 NOD to the June 1976 rating decision.  As noted above, however, there is no July 13, 1976 NOD of record or other statement that could constitute a timely NOD to the June 1996 rating decision.  Thus, the June 1996 rating decision is final.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1104 (2012).

The Board acknowledges that pursuant to 38 C.F.R. § 3.156(c), a final decision will be reconsidered 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.  See 38 C.F.R. § 3.156(c) (2012).  In such cases, the effective date for an award is "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)(3).  In this case, following the June 1996 rating decision, numerous personnel records were associated with the claims file that had not been of record at the time of the June 1996 rating decision.  In an October 2007 decision, the Board noted the provision of additional personnel records following the June 1996 rating decision.  Moreover, the October 2007 Board decision discussed how the records showed the Veteran's performance were below minimum standards and demonstrated a lack of effort to improve himself or commit himself to any productive goal.  In addition, the Board noted that the records included an August 1973 Mental Status Evaluation wherein the Veteran was described as fully oriented, with a depressed mood and a confused thinking process, but concluded that no significant mental illness was present.  After considering the foregoing, rather than finding that reconsideration of the original claim for entitlement to service connection was appropriate, the Board rendered the legal conclusion that the June 1976 rating decision was final.  The Veteran did not timely appeal the October 2007 Board decision to the Court and, as such, that decision is final and the Board's current analysis is constrained by those conclusions.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012).

In light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled, the Board also has considered whether an earlier effective date can be assigned based on the Veteran's subsequent claims, irrespective of whether the claims were filed for "a nervous condition," PTSD, or schizophrenia.  

In that regard, following the Veteran's claims or statements in January 1989, August 1990, September 1990, June 1991, July 1991, March 1995, August 1995, and November 1995, the RO provided the Veteran either with a rating decision (August 1991 and January 1996) or administrative decision letters explaining that the Veteran needed to submit new and material evidence sufficient to reopen his claim.  The November 1990 and March 1995 letters, in particular, provided the Veteran with the necessary information regarding the basis of the prior denial and the type of evidence that would constitute new and material evidence sufficient to reopen the claim for service connection.  

The Board has considered the arguments of the Veteran's representative that the Veteran's June 8, 1991 statement constituted an NOD of the November 1990 denial letter.  As discussed above, however, in context it is clear that the statement represented an NOD as to the January 1991 rating decision that denied entitlement to non-service connected pension and represented a new petition to reopen his claim for entitlement to service connection for a nervous condition.  As discussed, the Veteran requested that the RO review his service treatment records and that, "I consider this as a request for a SC rating on his nerves."  At no point did the Veteran express disagreement with the November 1990 denial letter.  It is also clear that the RO interpreted it as an NOD on the pension issue only, given the SOC it issued in June 1991 on that issue.

The Board also has considered the Veteran's July 1991 statement that he termed a "Notice of Disagreement" with the RO's June 1991 letter supplied in response to the June 8, 1991 statement discussed above.  While styled as an NOD, the July 1991 letter clearly was an attempt to provide the RO with the objective medical evidence necessary to reopen the claim, as directed by the June 1991 letter.  The RO properly adjudicated the claim in a subsequent August 1991 rating decision that, as discussed, was not timely appealed. 

In summary, the Veteran failed to file a timely NOD with the August 1991 and January 1996 rating decisions or timely submit pertinent new and material evidence as directed in the numerous administrative decision letters discussed above.  Thus, prior to the February 27, 1998 request to reopen there were no pending requests for service connection that remained unadjudicated, nor pending notices of disagreement as alleged by the Veteran's representative.  Where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date the VA received the particular application for which the benefits were granted.  Washington v. Gober, 10 Vet. App. 391 (1997).

There are only two exceptions to the rule of finality of VA decisions, that is, challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108).  Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).

If the grant is based on a claim which has been finally denied and subsequently reopened by the submission of new and material evidence, as is the case here, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(2) (2012).  The Veteran's claim to reopen was received February 27, 1998, which is the current effective date.

As discussed above, the Veteran contends that the June 1996 rating decision is not final because he filed a timely NOD.  Again, such document is not of record.  As to the June 8, 1991 statement that the Veteran's representative contends was an NOD of the November 1990 administrative decision letter, based on the foregoing discussion the Board concludes that this is not an accurate depiction of the June 8, 1991 statement.  

It is noteworthy that the Veteran's arguments do not amount to an allegation of CUE.  In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error and if the Veteran 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."  Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity.  Id.  The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Id.  Here, it is clear that the Veteran never, with any specificity, alleged CUE with the past rating decisions, administrative decision letters, or the October 2007 Board decision.  Rather, the Veteran argues that he filed an NOD for the June 1996 rating decision and November 1990 administrative decision letter.  The Board notes that all of the Veteran's statements currently of record regarding such potential NODs appear to have been of record at the time of the prior final determinations.  While the Veteran's representative claims the existence of a July 13, 1976 NOD following the June 1976 rating decision, no rating decision, administrative decision, or other document of record references the claimed July 1976 NOD.  In sum, the Veteran is not alleging the correct facts were not available to the adjudicators or that some other specific "error" was made.  Rather, the Veteran is merely disagreeing with the Board's analysis of the facts and weighing of the evidence.  The Veteran's arguments simply do not amount to alleging CUE as to disturb the finality of any past unappealed rating decision.

As noted, the Veteran filed a claim to reopen the issue of entitlement to service connection for paranoid schizophrenia on February 27, 1998.  The May 2008 grant was based on the submission of new and material evidence.  Therefore, 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).

There simply is no legal basis to award an effective date prior to February 27, 1998.  The Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation.  Thus, the Board concludes that an earlier effective date is not warranted in this case under VA regulations governing effective dates for awards based on an original claim for service connection.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.


ORDER

Entitlement to an effective date earlier than February 27, 1998, for the grant of service connection for paranoid schizophrenia is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs