Citation Nr: 1330295 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-20 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date earlier than July 31, 2009, for a grant of service connection for chronic psychosis. REPRESENTATION Appellant represented by: Richard G. Maxon, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran's active military service extended from July 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. This matter was previously before the Board in May 2012 when the Board denied the Veteran's claim for an earlier effective date for a grant of service connection for chronic psychosis. The Veteran appealed the Board's May 2012 decision to the United States Court of Appeals for Veterans Claims (Court) insofar as it denied an earlier effective date for a grant of service connection for chronic psychosis. In April 2013, the parties (the Secretary of VA and the Veteran) filed a Joint Motion for Remand (JMR) with the Court, which was granted by Order of the Court that same month, vacating the Board's May 2012 decision with respect to the issue of entitlement to an earlier effective date and remanding the claim for compliance with the terms of the joint motion. FINDINGS OF FACT 1. The Veteran's claim for service connection for a psychiatric disability was denied by the RO in an unappealed October 1978 rating decision which is final. 2. The earliest document in the claims file that may be accepted as a claim to reopen the Veteran's claim for service connection for a psychiatric disability is a letter received from the Veteran on July 28, 1987. CONCLUSION OF LAW The criteria for an effective date of July 28, 1987, and no earlier, for a grant of service connection for chronic psychosis have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.155, 3.156, § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran is challenging the effective date assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The Board finds that all pertinent records have been obtain and thus there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced by the Board's adjudication of his claim for earlier effective date. Further, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). II. Earlier Effective Date 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 the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date for the grant of service connection for disability compensation is the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)(i). The effective date for the grant of service connection for a reopened claim based on submission of new and material evidence after final disallowance is the date of receipt of new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r). The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA"). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include 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); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, 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 one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. A September 2009 RO rating decision reopened the Veteran's claim for service connection for a psychiatric disability and granted service connection. An effective date of July 31, 2009, was assigned based upon the receipt of a VA Form 21-4138 Statement in Support of Claim on that dated and a subsequent VA Form 21-527 on August 4, 2009, which served as the Veteran's claim to reopen her claim for service connection. In October 2009, the Veteran filed a notice of disagreement with the effective date assigned for service connection for her psychiatric disability. She stated "I disagree with the effective date of July 31, 2009 and believe I am entitled to an earlier effective date from my previous claim that I requested be reopened." The Veteran separated from active military service in June 1975. Service treatment records reveal mental health treatment including inpatient treatment for acute psychotic episode and schizophrenic decompensation. In July 1978, she filed a claim for service connection for a "nervous condition." In September 1978, a VA Compensation and Pension examination was conducted and the diagnosis was "adult maladjustment to life, inadequate personality, severe, with paranoid ideation." An October 1978 RO rating decision denied the claim for service connection for a nervous condition; this rating decision was provided to the Veteran under a cover letter dated November 1978. The address indicated on the cover letter was a street address in Waco, Texas. As the Veteran filed a notice of disagreement (NOD) in November 1978, it is apparent from the record that the Veteran received notice that the October 1978 rating decision denied service connection. The Veteran identified a new address, a post office box in Waco, Texas, on the bottom of the NOD. In December 1978, the Veteran was mailed a Statement of the Case (SOC) to the mailing address she indicated on her NOD one month earlier. The Veteran never filed a substantive appeal and the October 1978 RO rating decision denying service connection became final. The criteria in effect at the time of the 1978 RO rating decision states that following notification of an initial review and determination by the RO, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C. § 4005 (1976); 38 C.F.R. §§ 3.104(a), 19.118 (1978). In a June 1987 letter the Veteran reported that she had called a VA counselor in the hope he could sent her a form that she could complete and submit for an extension of her educational benefits. She reported that her separation date was in June 1975 and therefore her 10 year period ended in June 1985. She stated that she was informed that she had two years from that time to request an extension of benefits if she could prove that she had a physical or mental problem that prevented her from recovering the most of her educational benefits. Subsequently, in a statement dated in July 1987 VA informed the Veteran that additional information and evidence concerning her application for extension of delimiting date based on the existence of a disability was needed. She was asked to complete a VA Form 21-4138 including the type of disability she was claiming, the beginning and ending dates of the disability that she claimed prevented her from training, and the reason(s) she was unable to begin or continue a training program due to the disability, a brief statement of how the claimed disability was incurred, and a statement of her employment history during the period of claimed disability. In apparent response to this request for information the Veteran submitted a statement received by VA on July 28, 1987. The Veteran began the letter by stating "I am claiming an emotional (or medical(?) disability based on the following information and facts: My problems began shortly after enlistment in July 1974 ..." The statement then continued listing the Veteran's psychiatric, work, and education history from service until the present. The focus of the statement was on periods of work and psychiatric disability interrupting her efforts to attend school and use her education benefits. In August 1987 VA responded stating that it had received the Veteran's recent statement regarding an extension of her Chapter 34 delimiting date. An extension of the period of time to use her education benefits (delimiting date) was denied and she appealed. In a statement received in May 1988 the Veteran submitted medical records to help "determine a reinstatement of [her] Chapter 34 delimiting date educational benefits." Ultimately, the appeal was denied by the Board in a June 1990 decision. It has been argued that an earlier effective date is warranted because the October 1978 RO rating decision denying service connection did not become final. In a March 2011 written statement, the Veteran claimed that in 1978 she moved from Waco to Dallas and admitted herself to Parkland Hospital for psychiatric treatment. She specifically asserts that she was suffering a "psychotic break" at that time and that she wasn't aware of her rights. A handwritten note on the back of a VA form 21-4138 dated March 2012 indicates two different addresses at the time of the 1978 RO rating decision. The October 1978 RO rating decision denied the claim for service connection. The Veteran was provided notice under a cover letter dated November 1978. The address indicated on the cover letter was a street address in Waco, Texas. The Veteran received notice as evidenced by the filing of the NOD in November 1978. On the bottom of the NOD she indicated a new address, a post office box in Waco, Texas. In December 1978, the Veteran was mailed a SOC to the mailing address she indicated on her NOD one month earlier. The Veteran had until November 1979 to perfect her appeal by filing a substantive appeal; she did not do this. Any assertion that the Veteran did not receive the SOC is not supported by the evidence of record; she was mailed the SOC to the address she provided on her NOD less than a month earlier. She asserts that she moved to Dallas and admitted herself to a hospital for psychiatric treatment. Private hospital treatment records reveal that the Veteran was hospitalized in Dallas for a period of 12 days in April and May 1979. The diagnosis was borderline personality disorder in an acute psychotic episode. The need to rule out affective disorder and paranoid schizophrenia were also indicated. The hospital records indicate improvement upon discharge. The record does not support that the Veteran did not receive the SOC, as it was mailed to her last known address within 30 days of the receipt of her NOD. While she indicates that she moved, the hospital treatment records reveal that the treatment did not occur for almost four months. She was hospitalized for psychiatric treatment for a period of 12 days, but she was released and still had over 6 months left to perfect her appeal to the October 1978 rating decision. Because of the arguments, the Board has considered the doctrine of equitable tolling. The Veteran has argued that she is entitled to an earlier effective date of because she had a psychotic break and that she wasn't aware of her rights with respect to the 1978 RO rating decision. The application of equitable tolling within the context of Veterans law stems from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), wherein the United States Supreme Court held that equitable tolling may be applied to toll a statute of limitations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. As it applies to the governing statute in this case, 38 U.S.C.A. § 5110, Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) held that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110 as it does not contain a statute of limitations but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances. The following year Barrett v. Principi, 363 F.3d 1316 (2004) expanded equitable tolling to apply not only where the claimant has been "induced or tricked by his adversary's misconduct" but also where his or her "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making,' . . ." As Barrett dealt with the statute of limitation for filing appeals to the Court from decisions of the Board under 38 U.S.C.A. § 7266, it did not reverse Andrews on the point that the effective dates prescribed by 38 U.S.C.A. § 5110 are not statutes of limitation. Therefore, the controlling case law, Andrews (Holly) v. Principi, 351 F.3d 1134 (Fed. Cir. 2003), is that equitable tolling does not apply to 38 U.S.C.A. § 5110. The Board notes that the effective date established for the Veteran's psychiatric disability was based on § 5110. Another more recent decision of the Federal Circuit Court also addressed this issue, cited to Andrews as still good law, and similarly concluded that equitable tolling is not an available remedy to an appellant under § 5110. See Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curiam). Accordingly, an equitable tolling argument must fail because the Veteran is asking the Board to "waive the express statutory requirements for an earlier effective date", which it cannot do. See Edwards v. Peake, 22 Vet. App. 29, 36-37 (2008), quoting Andrews, 351 F.3d at 1138. Thus, the doctrine of equitable tolling is not for application in this case. A VA Form 9 with respect to the December 1978 SOC was filed in March 2012. The basic assertion is that the appeal to the 1978 SOC could be perfected over three decades late because of the holding in the case of Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197 (2011), which held that the 120-day deadline on filing appeals from a Board decision to the Veterans Court is not jurisdictional. This case is inapplicable in the instant case as the deadline in question is for perfecting an appeal to the Board within the VA appeals system and does not involve an appeal to the Court. A substantive appeal is deemed a non-jurisdictional requirement which, in certain circumstances, can be waived by the actions of the AOJ or the Board. See Rowell v. Principi, 4 Vet. App. 9, 16 (1993) (RO waived the untimeliness of a Substantive Appeal when it continued to adjudicate the claim); Gomez v. Principi, 17 Vet. App. 369, 372 (2003) (the Board waived the untimeliness of a Substantive Appeal by adjudicating the claim). See also Percy v. Shinseki, 23 Vet. App. 37, 42 (2009). Here, following the issuance of the December 1978 SOC there is no indication that the RO undertook any actions waiving the time requirements for filing a Substantive Appeal. On receiving the Veteran's claim in July 2009 the RO responded indicating that the claim was previously denied, that the Veteran was notified in November 1978 of the denial, and that the claim was one to reopen. Lastly, the Veteran's current representative in a statement dated in July 2013 reported: "In July 1977 [the Veteran] filed a claim for disability compensation for a 'nervous condition.' This claim was denied and when [the Veteran] failed to respond to the Statement of the Case, the decision became final." As such, the Board finds the October 1978 RO rating decision to be final. The parties to the JMR in April 2013 agreed that the content of the July 28, 1987, statement submitted by the Veteran "appears to constitute an intent to apply for benefits (claiming a disability with a history since service), and an identification of the benefits sought, (an emotional disability), and it is in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009)." The parties to the JMR further agreed that: While the Board dismisses the letter as only seeking an extension of the delimiting date for Appellant's education benefits, the Board does not address why the letter could not constitute a claim for "one or more benefits" per the regulation, to include disability benefits, particularly when read liberally. The parties agreed that "upon remand, the Board should re-adjudicate whether the July 1987 letter constitutes a request to reopen Appellant's claim of entitlement to service connection for a psychiatric condition and provide an adequate statement of reasons and bases for its findings." Upon further consideration of the content of the letter of the Veteran received July 28, 1987, the Board finds that this letter represents an application to reopen a claim for service connection for a psychiatric disorder. The letter indicates that the Veteran had a psychiatric problem in and since service. This application to reopen was not adjudicated until the RO rating decision granting benefits in September 2009. The Board notes that a VA medical examiner in August 2009 rendered the opinion that the Veteran's chronic psychosis NOS (severe mental illness) is at least as likely as not caused by a or a result of illness beginning prior to her Army enlistment, aggravated by her inability to fit into the service, her mother's terminal illness during that year, and her own unplanned pregnancy and "therapeutic" abortion of the 18 week pregnancy during that year in the Army. The examiner noted that the service medical records and preservice psychiatric reports are very clear that the Veteran has been psychotic intermittently since before her military enlistment. As such, the Veteran is entitled to an effective date of July 28, 1987, and no earlier, for her service connected chronic psychosis NOS. ORDER An effective date of July 28, 1987, for the grant of service connection for chronic psychosis is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs