Citation Nr: 1318076 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-45 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to October 13, 1994, for the grant of service connection for a psychotic disorder, to include schizophrenia and manic depressive disorder, to include whether this appeal was withdrawn and whether the effective date should be revised on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2003 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The October 2003 rating decision granted service connection for psychotic disorder, to include schizophrenia and manic depressive disorder, and assigned a 50 percent disability rating, effective October 13, 1994. The October 2003 decision also denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In October 2003, the Veteran filed a notice of disagreement with both the disability rating and the effective date aspects of the psychotic disorder claim, as well as with the TDIU denial. He was issued a statement of the case in April 2004, and he filed a substantive appeal with respect to both of these issues in May 2004. A May 2007 rating decision granted a 100 percent disability rating for the service-connected psychotic disorder, which rendered the TDIU issue moot. This decision also determined that the Veteran had withdrawn the earlier effective date claim. The November 2009 rating decision found that clear and unmistakable error had not been committed in VA's failure to adjudicate an earlier claim of entitlement to service connection for an acquired psychiatric disability. A notice of disagreement was received in November 2009, a statement of the case was issued in August 2010, and a substantive appeal was received in October 2010. The issue of entitlement to life insurance benefits has been raised by multiple May 2007 letters from the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On May 7, 2007, prior to the promulgation of a decision in the appeal, the RO received written notification from the Veteran that he wished to withdraw his claim of entitlement to an effective date prior to October 13, 1994, for the grant of service connection for a psychotic disorder, to include schizophrenia and manic depressive disorder. 2. The February 1979, February 1987, May 1987, and September 1987 rating decisions, which denied entitlement to nonservice-connected pension benefits, neither implicitly nor explicitly denied entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, or his authorized representative, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Clear and unmistakable error has not been shown in the February 1979, February 1987, May 1987, or September 1987 rating decision. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). With respect to the issue of the validity of the withdrawal of the earlier effective date claim, because the validity of the withdrawal of the substantive appeal and the determination of the Board's jurisdiction as to this issue is solely one of statutory interpretation, the duties to notify and assist are not applicable. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). With respect to the appellant's assertion of CUE, the Board finds that the provisions of VCAA and its implementing regulations do not apply. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that the provisions of VCAA do not apply to a claim based on a previous decision having been the result of clear and unmistakable error. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). The Court found that an attempt to obtain benefits based on an allegation of clear and unmistakable error 'is fundamentally different from any other kind of action in the VA adjudicative process.' Livesay, 15 Vet. App. at 178. As such, an allegation of clear and unmistakable error does not represent a 'claim,' but a collateral attack on a final decision. The provisions of VCAA, and its implementing regulations, are not, therefore, applicable to the adjudication of the issue of clear and unmistakable error in a prior final decision. II. Withdrawal of Earlier Effective Date The Veteran has claimed entitlement to an effective date prior to October 13, 1994, for the grant of service connection and the 100 percent rating that was assigned for his psychotic disorder. In pertinent part, the Veteran disputes the RO's determination that he has withdrawn his appeal as to this question. Even though the agency of original jurisdiction did not certify the appeal to the Board, the Board must determine its own jurisdiction. The October 2003 rating decision that is the subject of the present appeal effectuated the Board's July 2003 grant of service connection for psychotic disorder, to include schizophrenia and manic depressive disorder, and assigned a 50 percent disability rating, effective October 13, 1994. The Veteran subsequently perfected an appeal of the disability rating and effective date that were assigned in connection with that claim. Prior to the claim's certification to the Board, the Veteran underwent a VA mental disorders examination in January 2007. Based on the resulting examination report, the RO decided to grant the Veteran a 100 percent disability rating, effective from the same October 13, 1994, effective date that had been assigned for the 50 percent disability rating. A May 1, 2007, report of contact between the RO and the Veteran notes the following: Called Vet[eran] to advise 100% evaluation for schizophrenia is warranted on [illegible] [with] current [VA examination] to 10-94. But, no earlier eff[ective] date prior to 1994. Vet advises he will withdraw eff[ective] date issue. Advised Vet[eran] [rating] action will be completed once [statement] is [received]." A May 1, 2007, letter from the Veteran states the following: What a surprising phone call from you! Thank you so much for your final decision on my appeal! This letter is now sent to you per your request to finalize the V.A. Claim. I will be satisfied with 100% V.A. disability compensation for schizophrenia via my now withdrawing my appeal claim for ...an earlier effective date back to May 1972 but back to the re-opened date of October 1994. I hope this letter will be sufficient to accomplish the final outcome of this "Exhausting" Experience. (Ellipses in original. Capitalization in original omitted.) VA received the above letter on May 7, 2007. A rating decision was issued on May 8, 2007, effectuating the grant of the 100 percent disability rating for the service-connected psychotic disorder. The decision noted that the earlier effective date claim "was withdrawn by you, and received in our office on May 7, 2007. As such, your appeal is now terminated as withdrawn in the field and no further appellate action is required." Notice of this decision was mailed to the Veteran on June 19, 2007. A May 8, 2007, letter from the Veteran reads as follows: I still have not totally "Relished" in your message to me of my impending "appeal grant" ...with your phone call of May 1, 2007! Thank you "so" much! My last correspondence to you with letter, dated May 1, 2007, concerning my withdrawal of my ..."appeal for an earilier [sic] effective date" ...was with the understanding that my service connected compensation for schizophrenia was considered a total and complete disability ...with no possibility of a future "V.A. re-evaluation"! Also, since the V.A. seemed not to have informed me, back in July, 2003 ...when my prior V.A. Claim was approved, of my eligibility for life insurance ...I now suggest a reasonable proposal!! Since now my Grace Period has lapsed through no fault of my own for the life insurance and my Service Connected Diagnosis has been changed ...from "atypical psychosis" to "schizophrenia" ...I may now qualify for "free" life insurance up to ten thousand dollars! (Capitalization in original omitted.) This letter was received by VA on May 11, 2007. The Veteran also submitted a letter dated May 11, 2007, that states the following: This letter is as if an addendum to the letter to you, dated May 8, 2007. Please do not think I am being Irrational in my request ...but am pondering the consequences of my actions concerning 35 years of Service-Connected Disability Compensation. To Wit: If ...for one reason or another ... with the powers that be, that a total and complete, i.e. "permanent" disability compensation for 100 percent service-connected disability for "schizophrenia" cannot be made without possible future "re-evaluation ...and also that with a "free" ten thousand dollar life insurance cannot be granted with contingency arrangement ...then I wish for my V.A. claim folder to be forwarded to [the Board of Veterans Appeals] in Washington for their decision! ... Please do not think I am not grateful for all that the V.A. has done, however, ...I am seriously "hesitant" about a possible 22 years of suffering that seems to be overlooked by the V.A. with their assuming that a "de novo" judge's decision ...with his quoting that my illness was "compensible" [sic] within my first presumptive year post separation from service! Please note ...I hope you would be gracious to consider all that I have been through and give thorough thought to all that I have said. (Ellipses in original. Capitalization in original omitted.) This letter was received by VA on May 17, 2007. In June 2008, the Veteran's private attorney submitted a notice of disagreement that, in pertinent part, states that the Veteran disagreed that his written statement to VA that was received on May 7, 2007, constitutes a valid withdrawal of his appeal. The representative argues the following: It appears that the veteran was persuaded to waive his right to appeal the effective date in exchange for the RO offering to issue a rating decision which awarded some of the benefits that the veteran was entitled to (a 100% rating as of October 1994), even though the claim file discloses that the veteran has a good faith claim to entitlement to an effective date before October 1994. Please advise of any authority which VA has to condition an award on the veteran's withdrawal of his appeal. In an October 2010 substantive appeal letter, the representative directed VA to find that the purported withdrawal of his appeal is invalid and to "[f]ind that the agency may not lawfully induce a veteran to waive his entitlement to administrative, and potentially judicial, review of his claim for an earlier effective date by withholding benefits to which the agency has already conceded the veteran is entitled." The Board agrees that the agency may not lawfully induce a veteran to waive his entitlement to administrative, and potentially judicial, review of his claim for an earlier effective date by withholding benefits to which the agency has already conceded the veteran is entitled. The Board finds, however, that such actions were not taken in the case at hand, as VA did not induce the Veteran to waive his earlier effective date claim by insinuating it would withhold benefits to which he was lawfully entitled if he did not do so. This conclusion is reached following review of the relevant evidence, in particular (1) the May 1, 2007, report of contact; (2) the May 1, 2007, letter from the Veteran; and (3) the May 8, 2007, letter from the Veteran. The May 1 report of contact clearly reflects that the Veteran was first advised that a 100 percent evaluation for schizophrenia was warranted effective October 1994. No condition was placed on this award. The Veteran was then informed that an effective date prior to 1994 was not warranted. It is next noted that the "Vet advises he will withdraw eff[ective] date issue." VA did not suggest, much less mandate, withdrawal of the effective date claim. The withdrawal suggestion came solely and directly from the Veteran himself. In response to the Veteran's expressed intention to withdraw the claim, the Veteran was notified that the decision would be issued following his submission of a written statement withdrawing that claim. The report of contact does not suggest that the Veteran would not receive his increased rating benefits if he did not withdraw the effective date appeal. Applicable regulations provide that "appeal withdrawals must be in writing." 38 C.F.R. § 20.204(b) (2012). Furthermore, only the Veteran or his authorized representative may withdraw an appeal. 38 C.F.R. § 20.204(a) (2012). A valid withdrawal must include the name of the veteran, the name of the claimant or appellant (if different from the veteran), the file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b) (2012). The report of contact in the case at hand does not constitute a valid withdrawal, and thus a written withdrawal from the Veteran was required. All of the required components of a valid withdrawal appear in the May 1, 2007, letter. Furthermore, the tone of the May 1, 2007, letter from the Veteran does not suggest actual, implied, or perceived coercion of the Veteran on the part of VA. The Veteran was not under the mistaken impression that he had to surrender his right to an earlier effective date in order to obtain his 100 percent rating. Rather, the Veteran expresses elation and relief that "this 'Exhausting' Experience'" would soon be over. The Veteran understood that the earlier effective date claim had not been resolved and that his written withdrawal of that claim was necessary before his claim may be finalized consistent with his intentions. The May 8, 2007, letter reflects that the Veteran became satisfied with the October 13, 1994, effective date once he was informed that the 100 percent rating for his schizophrenia was already being granted and that this rating would not be decreased in the future. Thus, the actual relationship between the grant of the 100 percent rating and the withdrawal of the earlier effective date issue is the opposite of that which is alleged by the Veteran's representative. The grant of the increased rating claim led to the withdrawal of the effective date claim; the withdrawal of the effective date claim did not lead to the grant of the increased rating claim. VA issued the rating decision effectuating the grant of the 100 percent rating from October 13, 1994, for schizophrenia and dismissing as withdrawn the earlier effective date claim. The RO did not receive the Veteran's May 11 letter expressing second thoughts about having withdrawn his earlier effective date claim until nine days following its issuance of the May 8, 2007, rating decision. The Board acknowledges that the Veteran was unrepresented at the time of the May 2007 withdrawal. It has thus given a sympathetic reading to the Veteran's contentions as reflected in the May 1 report of contact and subsequent confirmation letter. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (finding that VA is obligated to sympathetically read the filings of a pro se Veteran). The Board can find no reasonable reading of either document, especially when read along with the Veteran's statements from May 8 and 11, that would lead to the conclusion that the Veteran believed he was required to withdraw his effective date appeal as a condition for the grant of the 100 percent disability rating. Rather, it appears to the Board that the Veteran withdrew his earlier effective date claim following the award of a substantial increase in disability benefits because he wished to close an adjudication that had been ongoing for more than 12 years. In short, the Board finds that the Veteran's May 1, 2007, letter, which was received by the RO on May 7, 2007, satisfies the requirements of 38 C.F.R. § 20.204(b) (2012). No attempt was made to revoke this withdrawal prior to the May 8, 2007, rating decision's confirmation that the appeal had been withdrawn. Thus, the Board finds that the Veteran's claim of entitlement to an effective date prior to October 13, 1994, for the 100 percent disability rating for the Veteran's service-connected psychotic disorder was properly withdrawn. Accordingly, the Board does not have jurisdiction to review the appeal for an earlier effective date for the grant of entitlement to service connection for a psychotic disorder, to include schizophrenia and manic depressive disorder, and it is dismissed. III. Scope of Withdrawal The Veteran's representative has attempted to limit the scope of the May 2007 withdrawal. According to the June 2008 notice of disagreement, "[T]he veteran contends that he filed other requests for benefits before 1994, so 1994 was not the correct reopening date." More specifically, the notice of disagreement asserts the following: The [May 2007] statement contemplates withdrawal of the veteran's request for a May 1972 effective date, but did not specifically withdraw subsequent claims made after May 1972 but before October 1994: Please note that the [Board] made a final decision in September 1974; the veteran filed subsequent benefits claims during the 1974 - 1994 time period which were not adjudicated, or were adjudicated solely on the basis of entitlement to pension, but not compensation. The following documents were cited as evidence of unadjudicated benefits claims: (1) a February 26, 1979, letter from the RO acknowledging that the Veteran had applied for disability benefits; (2) a February 26, 1979, rating decision notice letter that denied pension benefits; (3) a February 16, 1986, application for benefits; (4) a February 5, 1987, "denial of pension without addressing compensation"; (5) a May 12, 1987, "confirmed rating decision which denied pension but did not address compensation;" and (6) a September 20, 1987, "VA notice of denial of pension, but not compensation." The representative noted the Veteran's contention that these claims "remained pending and unadjudicated as of October 1994, and are not affected by the May 7, 2007 letter which pertains to withdrawal of the appeal for a 1972 effective date." This argument must be rejected for several reasons. First, the Board notes that the issue on appeal is for entitlement to an effective date prior to October 13, 1994, for the grant of service connection for a psychotic disorder, to include schizophrenia and manic depressive disorder. This issue thus contemplates entitlement to an effective date at any point prior to October 13, 1994. It is not limited to "entitlement to an effective date of May 1972." The earlier effective date appeal has never been presented to the Veteran as multiple claims, each for a different, specified earlier effective date. There was no issue of "entitlement to an effective date of May 1972" for him to withdraw, as that specific month was merely one of several in which the Veteran claimed an earlier effective date should have been assigned. The Veteran cannot, and did not, merely withdraw from VA consideration one specific theory of entitlement to an earlier effective date. He withdrew the claim of "entitlement to an effective date prior to October 13, 1994, for the grant of service connection for a psychotic disorder, to include schizophrenia and manic depressive disorder." In any event, the Board finds that the Veteran's May 1, 2007, statement that "I will be satisfied with 100% V.A. disability compensation for schizophrenia via my now withdrawing my appeal claim for ...an earlier effective date back to May 1972 but back to the re-opened date of October 1994" expresses satisfaction with the October 1994 effective date and does not merely direct VA to not consider whether the earlier effective date that he seeks should be in May 1972. (Emphasis added.) More broadly, however, the Board notes that the request to assign an earlier effective date for service connection based on an earlier date of claim falls squarely within the earlier effective date claim that was found to have been withdrawn. Thus, consideration of whether any or all of the statements cited above constitutes an actual or implied claim for service connection for a psychotic disorder is precluded, as this issue has been withdrawn and there thus remains no case or controversy as to that question. According to the June 2008 statement, "the veteran states that he disagrees with the decision announced on June 19, 2007, in particular, the assignment of an effective date ... and requests that the VARO issue a Statement of the Case because he desires further appeal." The representative contends that the June 2008 statement should be read as a notice of disagreement with the May 2007 rating decision. Essentially, this contention would represent a disagreement with the October 13, 1994, effective date as assigned to the 100 percent rating that was granted in that decision. The Board may not, however, reach the question of whether an increased disability rating is warranted prior to the effective date of the service connection without first considering the threshold question of whether an earlier effective date is warranted for the grant of service connection itself. In the case at hand, the Board has determined that the Veteran had withdrawn the earlier effective date issue for the service connection claim. That threshold question having been resolved in the negative, VA is thus precluded as a matter of law from considering the question of whether the Veteran may receive any compensation, to include the 100 percent disability rating which he has been assigned, prior to the current October 13, 1994, effective date. IV. Clear and Unmistakable Error The Court held that where a rating decision which established an effective date for an increased rating becomes final, an earlier effective date can only be established by a request for a revision of that decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In essence, the Court in Rudd held that there is no "freestanding" earlier effective date claim that can be raised at any time. See id. at 299. The only way to overcome the finality of a final decision in an attempt to gain an earlier effective date is by a request for revision of that final RO decision based on clear and unmistakable error. The Veteran in the case at hand has requested that VA assign an earlier effective date based on a finding of clear and unmistakable error. The United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and unmistakable error requires that error, otherwise prejudicial,...must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-4. "It must always be remembered that CUE is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Any claim of clear and unmistakable error must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of clear and unmistakable error, the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). The Court propounded a three-pronged test for determining when there was clear and unmistakable error present in a prior decision. (1) Either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Russell, 3 Vet. App. at 313-14. A mere difference of opinion in the outcome of the adjudication or a disagreement as to how facts were weighed and evaluated does not provide a basis upon which to find that VA committed administrative error during the adjudication process. See Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The alleged error must be of fact or of law, and when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable error. Fugo, 6 Vet. App. at 43-44. The Court also held in Fugo that allegations that previous adjudications had improperly weighed and evaluated the evidence could never rise to the stringent definition of clear and unmistakable error. Fugo, 6 Vet. App. at 44. Similarly, broad brush allegations of 'failure to follow the regulations' or 'failure to give due process,' or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Id. The Court has explained that VA's breach of the duty to assist cannot form a basis for a claim of clear and unmistakable error because such a breach creates only an incomplete rather than an incorrect record. Caffrey v. Brown, 6 Vet. App. 377, 384 (1994); see Hazan v. Gober, 10 Vet. App. 511, 522-23 (1997) (following Caffrey). In the case at hand, the Veteran contends that VA's failure to readjudicate his claim of entitlement to service connection for a psychiatric disability when it denied his claim for nonservice-connected pension benefits based on psychiatric disability in February 1979, February 1987, May 1987, and September 1987 constitutes clear and unmistakable error. Citing Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), and VAOPGCPREC 4-2004, both of which will be discussed in more detail below, the Veteran's representative has argued that, if the 1979, 1986, and 1987 claims based on psychiatric disability were "deemed denied," then the RO's 1979 and 1987 decisions are final to all claims, and the RO's failure to address whether benefits are warranted based on service connection is properly challenged through a CUE motion. The Veteran served on active duty from July 1967 to April 1969. His service treatment records reflect that he was found to be clinically normal psychiatrically at the time of his enlistment in the United States Navy Reserve in June 1966, prior to his period of active duty in June 1967, and at the time of his release from active duty in April 1969. He expressly denied any history of, or current, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, or nervous trouble of any sort on his June 1966 Reserve enlistment medical history report. He denied any history of, or current, frequent trouble sleeping, frequent or terrifying nightmares, or nervous trouble of any sort on his June 1967 pre-active duty medical history report, but he endorsed depression or excessive worry and explained that he had had depression that was connected with his school studies. The Veteran's service treatment records do not reflect that he ever sought treatment for symptoms associated with a psychiatric disability during service. Following his separation from service, the record reflects that the Veteran underwent psychiatric hospitalization in October 1970 and in February 1972, neither of which was within one year of his April 1969 separation from service. The record contains multiple records from the February 1972 hospitalization, including an August 1972 summary of hospitalization reflecting that this hospitalization lasted from February 1972 to April 1972 and that the Veteran was diagnosed with acute schizophrenic reaction, paranoid. In April 1972, the Veteran submitted a claim form requesting compensation or pension benefits. In June 1972, the Veteran submitted a net worth and employment statement in support of a claim for total disability benefits on which he listed the nature of his illness as "mental." In September 1972, he was scheduled for a psychiatric examination. Prior to the examination, however, the Veteran submitted a letter stating that he had been given a job and hoped to be able to continue to work. Therefore, he stated, he did not need the psychiatric examination. This claim was therefore considered to have been withdrawn. In October 1972, the RO sent the Veteran a letter acknowledging that the Veteran had withdrawn his claim and that he was therefore found not to be eligible for pension benefits. In October 1973, VA received a claim from the Veteran of entitlement to service connection for emotional illness, which he estimated began in April 1970; "'flashbacks,' 'nightmares,' psychotic," which he also estimated began in April 1970; and disorientation, which he estimated began in October 1971. He reported that he was treated for depression aboard the U.S.S. John Paul Jones in 1969, that he suffered carbon monoxide poisoning in 1968, and that he was treated for a head injury in 1969. An October 1973 statement from the Veteran's mother notes that, "[s]ince his discharge from the Navy he has been very unsettled." She described having found him in his room with his left wrist cut in October 1970, which prompted his hospitalization. The Veteran's claims of entitlement to service connection for a nervous condition and nonservice-connected pension benefits were denied in a December 1973 rating decision. This decision notes that the record did not show a psychotic disorder during service or within the one-year period following his release from active duty. The Veteran's condition was also noted to be in good remission and not disabling to a degree that would qualify him for a nonservice-connected pension. A January 1974 statement from one of the Veteran's fellow service members notes that the Veteran endured periods of despair and depression during service and describes the Veteran's unusual behavior when he and his wife visited the Veteran at Dayton Hospital. The Veteran perfected appeals of both denials and, in September 1974, the Board issued a rating decision denying entitlement to service connection for a nervous condition and denying entitlement to a permanent and total disability rating for pension purposes. The Board found that there were no complaints or findings regarding a nervous condition during service or at the time of his discharge, and that the first medical evidence of a nervous disorder following discharge from service was in October 1970. It also found that the Veteran's nervous disorder was not of such a nature and severity as to prevent him from securing and following some form of substantially gainful employment consistent with his background. In January 1979, the Veteran submitted a statement "[r]equest[ing] consideration for the non service connected disability pension." The record contains a January 1979 medical record that describes the Veteran's VA psychiatric hospitalization from December 1978 to January 1979 with a clinical impression at the time of admission of acute psychosis. He was diagnosed with schizophrenia, paranoid type. The Veteran claimed that his first psychotic episode occurred at age 20. This record describes the Veteran "as a chronic schizophrenic who experienced an acute psychotic episode. This apparently resulted from an inability to cope with his employment and his social environment." It was noted that he was "considered competent and employable" at the time of his discharge from the hospital. A February 1979 rating decision and notice confirms the prior denial of nonservice-connected pension benefits. It notes the Veteran's psychiatric hospitalization but observes that the Veteran's condition improved with medication. The Veteran next filed a claim in December 1986. This claim form lists "manic depressive / nerves" as the issue for which he was seeking benefits. In response to the portion of the claim for requesting dates and places of any treatment received in service, the Veteran indicated that this was N/A [not applicable]. The Veteran was notified in a February 1987 letter that VA "cannot grant your claim for disability benefits." This letter explains that the Veteran's annual income exceeded the maximum annual rate of income for a veteran without dependents to receive disability pension. In a March 1987 statement, the Veteran notified VA of his psychiatric hospitalization dates and the dates on which he had recently received outpatient mental health treatment. VA subsequently obtained records from the Veteran's November 1986 private psychiatric hospitalization, at which time he had been diagnosed with bipolar disorder and possible paranoid schizophrenia. In April 1987, the Social Security Administration awarded the Veteran disability benefits, having determined that he had become too disabled to work in December 1986. His pension claim was again denied in May 1987. He filed a notice of disagreement with this denial in June 1987. In July 1987, the Veteran submitted a copy of the Social Security Administration award letter "[i]n support of my claim for Non-Service Disability." The Veteran underwent a VA psychiatric examination in July 1987. Following review of the claims file and interview and examination of the Veteran, the examiner diagnosed bipolar affective disorder or schizophrenia, currently in remission, with mild to moderate impairment. The Veteran was again denied pension benefits in a September 1987 rating decision. The Veteran again claimed entitlement to nonservice-connected pension benefits on an extraschedular basis in July 1993. This benefit was ultimately granted in a September 1994 RO Hearing Officer's Decision, and was effectuated in an October 1994 rating decision. The September 1994 decision describes the Veteran's pertinent history, noting that he was denied service connection and pension benefits based on a psychiatric disability in 1974. During subsequent attempts to obtain pension benefits, the Veteran had submitted a list of jobs he has held since service. It was noted that the Veteran's most recent job was the one that he had been at the longest. It was noted that the Veteran had been terminated from this job after having been placed on indefinite medical leave because he was being harassed by his supervisor. He was subsequently awarded Social Security income in 1987, went back to work for three years, "and now has no recent earnings under Social Security and is no longer eligible." Non-service connected pension benefits were awarded on an extraschedular basis "[b]ased on the chronicity of the veteran's condition and his attempts to work even after having been awarded disability Social Security." As discussed above, the Veteran was granted entitlement to service connection for a psychotic disorder in a July 2003 Board decision. This decision was effectuated in an October 2003 rating decision, and the Veteran was assigned a 50 percent disability rating effective October 13, 1994. The Veteran perfected appeals as to both the disability rating and the effective date. In the course of this appeal, a May 2007 rating decision increased the Veteran's disability rating to 100 percent, effective October 13, 1994, and the Veteran withdrew the earlier effective date claim. In June 2008, the Veteran's private attorney submitted a notice of disagreement with the May 2007 rating decision and a request for revision based upon clear and unmistakable error in failing to adjudicate. This statement identifies the following documents as evidence of unadjudicated benefits claims: (1) a February 26, 1979, letter from the RO acknowledging that the Veteran had applied for disability benefits; (2) a February 26, 1979, rating decision notice letter that denied pension benefits; (3) a February 16, 1986, application for benefits; (4) a February 5, 1987, "denial of pension without addressing compensation"; (5) a May 12, 1987, "confirmed rating decision which denied pension but did not address compensation;" and (6) a September 20, 1987, "VA notice of denial of pension, but not compensation." The representative made the following argument: [I]f VA determines that his compensation claims as above-referenced were "deemed denied" by reason of the issuance of a decision which denied pension, and therefore they represent final decisions on the compensation claims, then the veteran asserts that the VA's failure to adjudicate the compensation claims and give the veteran notice thereof is the product of clear and unmistakable error and the "deemed denied" decisions should be revised to adjudicate the compensation claims. In a November 2009 rating decision, the RO found that there was no evidence of clear and unmistakable error in the assignment of the effective date. The November 2009 notice of disagreement essentially objects to VA's failure to readjudicate the Veteran's claim of entitlement to service connection for a psychiatric disability when it denied his claim for pension benefits based on psychiatric disability in February 1979, February 1987, May 1987, and September 1987. In it, the Veteran contends that the existence of service connection claims that were raised in 1979, 1986, and 1987 but were pending and unadjudicated supports his claim for an effective date that was earlier than that which was assigned in the May 2007 rating decision. To the extent that the 1979, 1986, and 1987 statements are being offered as evidence of unadjudicated claims, the Board notes that, even if it were to accept the Veteran's contention that he did, indeed, raise a claim of entitlement to service connection for a psychotic disorder in 1979, 1986, or 1987, any such claim is not considered to have been unadjudicated, as VA clearly adjudicated a claim of entitlement to service connection for a psychotic disorder in December 1994. Because the claim of entitlement to service connection for a psychotic disorder has been adjudicated, there can be no pending, unadjudicated claim of entitlement to service connection for a psychotic disorder. Because the Veteran has already withdrawn his earlier effective date claim, the Board may not consider whether any of the above-noted statements constitutes an earlier claim for service connection for a psychotic disorder. As relevant to the CUE issue, however, the Veteran also contends that the statements he submitted in 1979, 1986, and 1987 constituted service connection claims for a psychotic disorder that were implicitly denied in the VA's explicit denials of the Veteran's nonservice-connected pension claim in February 1979, February 1987, May 1987, and September 1987. In the Veteran's view, any of these four decisions would then constitute final denials of service connection and would thus be subject to revision based on a finding that denial of service connection benefits in those decisions was clearly and unmistakably erroneous. When a record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). The Court provided guidance in interpreting Deshotel through its decision in Ingram v. Nicholson, 21 Vet. App. 232 (2007). The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision. See Deshotel. When an RO decision 'discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not 'specifically' deny that claim.' Ingram, 21 Vet. App., at 255. The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well. Adams v. Shinseki, 568 F.3d 956, 962-963 (Fed. Cir. 2009). In VAOPGCPREC 4-2004, VA's Office of General Counsel issued guidance that, for a final VA or Board decision to be reversed or revised under 38 U.S.C.A. §§ 5109A or 7111 on the ground that VA failed to recognize a claim for veterans benefits, it must be concluded that: (1) it is obvious or undebatable that, when prior filings are construed in the claimant's favor, the pleadings constitute an earlier claim for the veteran's benefit that was subsequently awarded by VA; and (2) VA's failure to recognize that claim manifestly affected the subsequent award of benefits. The Board finds that the implicit denial rule is not raised in the case at hand, as it is neither obvious nor undebatable that a 1979, 1986, or 1987 pleading constitutes an earlier claim for service connection for an acquired psychiatric disability. In fact, the Board finds that no pleading from the statements at issue can even reasonably be construed to constitute an earlier claim for service connection benefits. The January 1979 statement expressly "[r]equest[s] consideration for the non service connected disability pension." The medical evidence that was submitted at the time of this claim pertains to a recent psychiatric hospitalization due to "an acute psychotic episode [that] ... apparently resulted from an inability to cope with his employment and his social environment." While the January 1979 medical record does mention that the Veteran reported having first suffered a psychotic episode at age 20, this evidence constitutes, at most, an implicit indication that the Veteran may have had a psychotic disorder in service. It does not constitute a claim for service-connected benefits, much less an obvious or undebatable claim for such benefits. In making this determination, the Board must also address the suggestion from the November 2009 notice of disagreement that the RO's February 1979 "letter which acknowledges that the veteran applied for 'disability benefits'" somehow constitutes an acknowledgment or adjudication of a service connection claim. The Board notes that the term "disability benefits" is not the same as the term "service connection benefits." While service connection benefits are a type of disability benefit, there are many other types of benefits that are properly categorized as "disability benefits" that are not claims for service connection. The Veteran's own claim of "[e]ntitlement to a permanent and total disability evaluation for non-service-connected disability pension purposes" qualifies as a claim for disability benefits that are not being sought on the basis of service connection. (Emphasis added.) Thus, the term "disability benefits" is not interchangeable with the term "service connection benefits," and the RO's acknowledgment of a "disability benefits" claim does not constitute an express or implicit recognition of a service connection claim. With respect to the 1987 adjudications, the December 1986 benefit claim for "manic depressive / nerves" does not even implicitly suggest that the Veteran wished to reopen his previously-denied claim of entitlement to service connection for a psychotic disorder. Even after the Veteran was expressly notified in February 1987 that his claim could not be granted because his annual income was too high for disability pension purposes, the Veteran submitted a copy of his Social Security Administration benefits award letter as evidence "[i]n support of my claim for Non-Service Disability." (Emphasis added.) None of the letters that were submitted in December 1986 or 1987 suggests a service connection claim. Based on the above, the Board finds that it is not obvious or undebatable that the Veteran had requested that VA consider whether he should be granted service connection benefits for a psychotic disorder. Moreover, the Board further finds that even if these were considered to have been implicit denials of a claim for service connection for a psychiatric disorder, the Board finds no reason to conclude that it is absolutely clear that a different result would have ensued if not for clear and unmistakable error. The supposed clear and unmistakable error alleged involves failing to specifically adjudicate the claims and failure to provide notice of denial to the Veteran. The Board notes that the evidence that was of record as of those dates did not substantially differ from the evidence that was of record as of the date of the Board decision of September 1974 which had denied service connection for a psychiatric disorder with only a few additional post service treatment records added. There is no reason to believe that adjudication of the claim February 1979, February 1987, May 1987, or September 1987 should have resulted in allowance of the claim, regardless of whether or not notices of such decisions were provided. Therefore, the error complained of cannot be clear and unmistakable error. In summary, the Board finds no evidence of CUE in the February 1979, February 1987, May 1987, and September 1987 rating decisions that denied the Veteran's claim of entitlement to nonservice-connected pension benefits, as it is neither obvious nor undebatable that any of these decisions constituted a deemed denial of a claim of entitlement to service connection for an acquired psychiatric disability. Thus, the claim of CUE in the February 1979, February 1987, May 1987, and September 1987 rating decisions is denied. ORDER Entitlement to an effective date prior to October 13, 1994, for the grant of service connection for a psychotic disorder, to include schizophrenia and manic depressive disorder, to include whether this appeal was withdrawn and whether the effective date should be revised on the basis of clear and unmistakable error, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs