Citation Nr: 1317294 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 11-05 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than December 22, 1995 for the grant of service connection for schizoaffective disorder, bipolar type, previously claimed as anxiety disorder, major depression, posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1951 to May 1955. In a March 2012 rating decision, the RO found the Veteran not competent to handle disbursement of funds, and the Veteran's spouse has been appointed as guardian. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision by the Appeals Management Center (AMC) in Washington, D.C. Jurisdiction over the Veteran's claims file is with the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An August 1981 rating decision denied entitlement to service connection for a psychiatric condition; the Veteran did not file a timely notice of disagreement, so the August 1981 rating decision became final. 2. In a statement received by the RO on January 14, 1982, the Veteran expressed an intent to reopen his claim of entitlement to service connection for a psychiatric condition; the January 14, 1982 request was not adjudicated by VA. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an earlier effective date of January 14, 1982 for the grant of service connection for schizoaffective disorder, bipolar type, have been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.160, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "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). The implementing regulation clarifies this to mean, except as otherwise provided, that the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.155(a), a veteran or a representative of a veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. See also 38 C.F.R. § 3.1(p). A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. 38 C.F.R. § 3.155(b). The Board notes effective dates may also be changed when a prior rating decision is found to have "clear and unmistakable error" as described in 38 C.F.R. § 3.105. That is, pursuant to 38 C.F.R. § 3.104(a), "[a] decision of [an RO] shall be final and binding on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104." 38 C.F.R. § 3.104(a). In this case, the Veteran has not articulated CUE with any prior rating decision, so the Board will not address the issue of CUE herein. Thus, with respect to the earlier effective date claim on appeal here, the Board will focus the analysis on determining the proper date of the claim and the proper date of when entitlement arose. Thereafter, the proper effective date is determined by taking the latter of the two dates determined. See 38 C.F.R. § 3.400. The Veteran filed an original claim of entitlement to service connection for a nervous condition in November 1966. The RO denied the claim in a March 1967 rating decision. The Veteran filed a timely substantive appeal, and, ultimately, the Board denied the claim in a January 1969 decision. The Veteran did not appeal the Board's decision to the U.S. Court of Appeals for Veteran's Claims (Court). Thus, the Board's decision became final. See 38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). In March 1981, the Veteran filed a request to reopen his claim of entitlement to service connection for a nervous condition. The RO denied the claim to reopen in an August 1981 rating decision. The Veteran did not file a timely notice of disagreement (NOD). Thus, the August 1981 rating decision became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Finally, on December 22, 1995 (the current effective date of service connection for schizoaffective disorder), the Veteran filed another request to reopen his claim of entitlement to service connection for a nervous condition to include PTSD. The RO initially denied the claim in a June 1996 rating decision. The Veteran filed a timely substantive appeal, and the Board denied the claim in a January 2002 decision. However, the Veteran appealed the case to the Court, and, by way of an August 2004 Order, the Court vacated the Board's January 2002 decision and remanded the case back to the Board. The Board subsequently remanded the case in August 2008, and the AMC granted service connection for schizoaffective disorder in the July 2009 rating decision that is the subject of this appeal, assigning an effective date of December 22, 1995, the date the Veteran's request to reopen his claim for service connection was received. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for schizoaffective disorder because he first filed a claim for the condition many years prior to the 1995 effective date in 1966, as outlined above. In claims that have been reopened with new and material evidence, if there has been a final prior RO denial of the benefit sought, the effective date cannot be earlier than the subsequent request to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Generally, the only way to overcome the finality of such a prior decision is to request revision of the decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Here, as noted above, the Veteran has not alleged CUE in any prior decisions. CUE is not before the Board or RO. Thus, the question before the Board is whether there is any evidence in the claims file that can be construed as a claim to reopen prior to the filing of the claim to reopen filed on December 22, 1995, but subsequent to the last final rating decision in August 1981. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, 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. 38 C.F.R. § 3.155. After reviewing the record, the Board finds that the Veteran filed a VA Form 21-4138 (Statement in Support of Claim) received by the RO on January 14, 1982 that expresses an intent to reopen his claim of entitlement to service connection for a psychiatric condition. Specifically, in addition to requesting service connection for bronchitis, the Veteran wrote "Also request s/c for psychiatry. I was treated for that condition in the service." He did not submit any new and material evidence with the January 1982 statement or within one year of the August 1981 rating decision such that the provisions of 38 C.F.R. § 3.156(b) (2012) apply. In other words, the August 1981 rating decision remained final. The RO responded to the January 1982 claim with a February 1982 letter requesting medical evidence pertaining to the bronchitis claim only. The RO's letter did not mention the request to reopen the psychiatric claim at all. VA did not take any further action with regard to the January 1982 claim. Where evidence requested in connection with an original claim, a claim for increase or to reopen, or for the purpose of determining continued entitlement is not furnished within one year of the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a) (2012). Where a prior claim has been abandoned, the veteran must file a new claim, and the effective date of service connection will not be earlier than the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.158, 3.400(b) (2012). However, in this case, the Board finds that the January 1982 request to reopen a claim of entitlement to service connection for a psychiatric condition was not abandoned, as the RO never requested evidence pertaining to the psychiatric claim in its February 1982 letter or at any other time following receipt of the January 1982 claim. The request for evidence by VA is the trigger for the commencement of the one year time period during which it is the responsibility of the claimant to submit evidence supporting his claim. Thus, in this case, the one year time period never commenced, and the January 1982 request to reopen was never abandoned. See 38 C.F.R. § 3.158(a) (2012). Therefore, the January 14, 1982 statement of the Veteran constitutes an informal request to reopen his claim for a psychiatric condition. It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization by VA or one of the uniformed services will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply after a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. In this case, there are no service or VA treatment records dated subsequent to the last final denial in August 1981 and prior to the receipt of the January 14, 1982 informal claim to reopen that would constitute an informal claim. Thus, the provisions of 38 C.F.R. § 3.157 do not apply in this case. The Board concludes that the date of claim here is January 14, 1982. To reiterate the statement of the law above, under 38 C.F.R. § 3.400(b)(2), the later either of the date of the claim (in this case, January 14, 1982) or the date upon which entitlement arose controls, and is the appropriate effective date. Currently, as granted herein, the effective date is January 14, 1982, which is the date the Veteran's claim was received for reasons explained above. The January 14, 1982 effective date assigned herein is the date the RO received the Veteran's informal claim of entitlement to service connection for a psychiatric condition (to reopen the claim). To the extent the Veteran is arguing the date on which entitlement arose pre-dated his newly assigned effective date, his claim must fail. Even if the date entitlement arose pre-dated the date of claim, under the law, the proper effective date is the latter of the two. See 38 C.F.R. § 3.400(b)(2). Resolving reasonable doubt in the Veteran's favor, the Board finds that the appropriate effective date for the grant of service connection for schizoaffective disorder is January 14, 1982. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran's claim here arises from his disagreement with the effective date assigned following the initial grant of service connection for schizoaffective disorder. In Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), 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 in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed. The Board further finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service treatment records, private treatment records, VA treatment records, and other records identified by the Veteran. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the earlier effective date claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An earlier effective date of January 14, 1982 for the grant of service connection for schizoaffective disorder, bipolar type, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs