Citation Nr: 1335559 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 05-03 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than September 10, 2002, for the award of service connection for schizoaffective disorder. REPRESENTATION Appellant represented by: Tara R. Goffney, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that granted service connection for schizoaffective disorder effective from September 10, 2002. The Board issued a decision in January 2009 that denied an earlier effective date for service connection. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Court granted a Joint Motion of the Parties to vacate the Board's decision and to return the case to the Board for further consideration. The Board issued a decision in February 2012 that again denied an earlier effective date for service connection. The Veteran again appealed to the Court. In February 2013 the Court issued a Memorandum Decision that affirmed in part and vacated in part the Board's decision. The file has now been returned to the Board for further review. The Court's Memorandum Decision did not disturb the Board's finding that new and material evidence had not been received under the provisions of 38 C.F.R. § 3.156(b) prior to September 2002, and noted it did not have jurisdiction to address an argument of error in a final March 1987 rating decision that denied service connection. Rather, the Court's decision specifically directed the Board to consider whether an earlier effective date for service connection is warranted pursuant to 38 C.F.R. § 3.156(c). The Board notes the Veteran's attorney has indicated that she recently filed a claim of clear and unmistakable error (CUE) in the March 1987 rating decision at the RO. There is no indication that such claim has been adjudicated by the RO. Therefore, such issue is not presently before the Board, and the matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. An unappealed rating decision in March 1987 denied the Veteran's original claim for service connection for a nervous disorder, based on a determination that the disorder existed prior to service and was not aggravated during service. 2. In September 2002 the Veteran filed a request to reopen the previously-denied claim, which was denied by an RO rating decision in January 2003 based on a finding on the merits that the claimed disorder was not incurred in or aggravated by service. 3. In a July 2004 rating decision, the RO granted service connection for schizoaffective disorder with an effective date of September 10, 2002, the date the Veteran's request to reopen the claim was received. 4. In October 2004, the Veteran submitted evidence in the form of service treatment records that were not before the RO in 1987; these newly-received service treatment records were not a factor in the decision to grant service connection. CONCLUSION OF LAW The criteria for an effective date earlier than September 10, 2002, for the award of service connection for schizoaffective disorder are not met. 38 U.S.C.A. §§ 501a, 5110 (2002); 38 C.F.R. § 3.156 (2002-2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The present appeal arises from the initial award of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that in cases in which 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. Dingess, 19 Vet. App. 473, 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice, to include on multiple appeals to the Court. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. In this regard, the record includes service treatment records (STRs), post service treatment records, and VA examination reports. The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issue to the Veteran, and the Veteran testified as to the timeline of his claim, the in-service symptoms and treatment, and why he believed an earlier effective date was warranted. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include during multiple appeals to the Court, nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue on appeal Analysis As noted in the Introduction, the Court vacated the Board's February 2012 decision for consideration of the narrow issue of whether application of 38 C.F.R. § 3.156(c) supports assignment of an earlier effective date for a grant of service connection for schizoaffective disorder. The Court affirmed the Boards determination that 38 C.F.R. § 3.156(b) did not support an effective date earlier than September 10, 2002 and that the March 1987 rating decision was final. This appeal arises from a rating decision issued in 2004. The wording of 38 C.F.R. § 3.156(c) was changed in 2006 during the course of the appeal. However, in specific regard to the change in 38 C.F.R. § 3.156(c), the Court has determined that the nature and extent of the change was substantial and weighed strongly against giving retroactive effect to the amended regulation. See Cline v. Shinseki, 26 Vet. App. 18 (2012). Further, the Court endorsed application of Cline in the present case; see Memorandum Decision p. 4. The Board will accordingly apply the earlier (2002-2006) version of the regulation, which is cited below. Where new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and now have been located and forwarded to VA. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury on the basis of the new evidence from the service department must be adequately supported by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive rating will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c) (2002-2006). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The essential facts have been noted by the Court and are not in dispute. The Veteran served on active duty from January 1985 to July 1986. Four days after entering active duty (January-February 1985) he was admitted to the hospital for "bizarre behavior in his unit" and he was discharged from the hospital with a diagnosis of "atypical psychosis, resolved." Sixteen months later the Veteran was hospitalized in service for a psychotic episode, diagnosed as "bipolar disorder, manic with psychotic features." A medical board determined the Veteran was unfit for retention in service and recommended he be discharged. The medical board also determined that the Veteran's condition existed prior to service (EPTS) and was not aggravated by service. The Veteran filed an initial request for service connection in January 1987 requesting service connection for a "nervous disorder in service [19]85 and [19]86 as due to aggravation." The Veteran also submitted a Statement in Support of Claim in which he stated he had been treated for depression and confusion prior to service and that he was hospitalized twice during service. The RO denied service connection by a rating decision in March 1987, based on a determination that the Veteran's disorder pre-existed service and was not aggravated by service. At the time of the March 1987 decision, the RO had obtained a packet of service treatment records, but records of the Veteran's hospitalization in January-February 1985 were not included therein. The Veteran did not appeal the denial of service connection and the decision became final. 38 C.F.R. §§ 19.129, 19.192 (1986). In September 2002 the Veteran filed a request to reopen the previously-denied claim. The RO issued a decision in January 2003 that continued the previous denial of service connection, based on a finding that the evidence of record did not show the Veteran's claimed disability was incurred in or aggravated by service. The Veteran appealed the denial of service connection. Following a June 2004 VA mental disorders examination, the RO issued the July 2004 rating decision on appeal, granting service connection for schizoaffective disorder with an effective date in September 2002, the date the request to reopen was received. The Veteran submitted a Notice of Disagreement (NOD) in October 2004 in which he enclosed service treatment records that had not been previously associated with the claims file; these records consisted of an inpatient cover sheet and narrative summary relating to his first in-service hospitalization during the period January 27, 1985 to February 4, 1985. The newly-received service treatment records essentially show that after having been at the reception station for three days the Veteran exhibited "bizarre" behavior on arriving at his unit, to include calling his Drill Instructor "daddy;" he also stated he was going to heaven, took off his clothes in the Emergency Room and reported auditory hallucinations (hearing angels singing "Amazing Grace"). He was treated at the time with one injection of Haldol, an anti-psychotic drug, and was admitted for group, occupational and recreational therapy and individual counseling. The Veteran exhibited no psychotic symptoms after the first 24 hours of hospitalization, and expressed an interest in remaining on active duty, so it was felt he deserved a further trial of duty. He was diagnosed with "atypical psychosis, resolved" and discharged back to duty, with follow-up to monitor his mental status. As noted by the Court, there is no question that the January-February 1985 service treatment records cited above was not considered by the RO prior to October 2004. The question before the Board is whether these service treatment records warrant an earlier effective date under 38 C.F.R. § 3.156( c) (2002-2006). The Board notes as a threshold matter that 38 C.F.R. § 3.156 (2002-2006) states that a previous denial "will be reconsidered" when new evidence includes service records that were not previously considered by VA. However, retroactive evaluation is predicated on a circumstance in which service connection has been granted on the basis of new evidence from the service department. 38 C.F.R. § 3.156(c) (emphasis added). In the present situation, the RO's eventual grant of service connection in September 2004 did not rely on service treatment records that were received after VA's initial denial in 1987. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). At the time of the March 1987 rating decision, the evidence before the RO demonstrated a current disability, a pre-service hospitalization for a psychiatric disorder in 1984, and in-service complaints. However, a medical opinion (the in-service Medical Board) determined the in-service disorder was EPTS/not aggravated by service. The missing element of service connection - medical opinion that the preexisting disorder was in fact aggravated by service - was not of record until 2004, and such favorable opinion was rendered without the missing service records. The rating decision in September 2004 cites three factors for granting service connection: post-service private treatment records showing treatment for schizoaffective disorder; the Veteran's testimony before the RO's Decision Review Officer in May 2004; and, a VA medical opinion in June 2004 in which the examiner stated an opinion that the Veteran's preexisting psychiatric disorder was as likely as not aggravated by service. As the January 1985 hospitalization reports were not yet of record, the examiner clearly did not base his opinion on those records. As noted by the Court, the Veteran testified before the RO's Decision Review Officer (DRO) in May 2004 that he had documentation that he was treated in service in January 1985, and the DRO responded, "I'll just note in the file that you do have some additional records." See Hearing Transcript p. 3-5; see also Memorandum Decision p. 5. Shortly after the May 2004 DRO hearing, the Veteran had a VA examination in June 2004 that resulted in service connection being granted in July 2004; accordingly, no further development action was undertaken as a result of the DRO hearing. However, as service connection was granted effective from September 2002, the Board cannot find that the exchange between the Veteran and the DRO in May 2004 somehow shows entitlement to an earlier effective date for service connection. In short, as the claim for service connection was granted without consideration of the missing service treatment records, the provisions of 38 C.F.R. § 3.156(c) do not apply. The Board notes the Veteran's representative asserts that VA failed in its duty to assist by not obtaining the service treatment records in 1987, and that these records, which show diagnosis of "atypical psychosis resolved" in 1985, would have played a vital role in establishing that the Veteran's mental condition was aggravated by active service. See Memorandum Decision, p. 4. The Veteran's representative also submitted a letter in July 2013 that asserts VA must re-adjudicate the March 1987 claim under 38 C.F.R. § 3.156(b) and (c) because the RO's failure to obtain service treatment records identified by the Veteran at that time were not requested; thus, VA violated the duty to assist. However, no provision of 38 C.F.R. § 3.156 permits negating the finality of a prior denial for a failure in the duty to assist. Indeed, the representative's argument citing 38 C.F.R. § 3.156(b) has already been dismissed by the Court: "[T]he parties expend considerable energy disputing whether the RO had a duty to obtain the appellant's medical records in 1987. However, that ship has already sailed. In other words, the RO did not obtain the records in 1987, and regardless whether the RO breached its duty to assist by failing to obtain the records, the pertinent question for purposes of establishing an earlier effective date pursuant to 38 C.F.R. § 3.156(b) is whether the RO received new and material evidence within the one-year appeal period .... [t]he only evidence received by the RO in 1987 was VA Form 10-7131. The Board assessed this evidence and determined it was not new and material. Because the Court concludes the appellant has not demonstrated that the Board's determination is clearly erroneous or inadequately explained. The Court will affirm that part of the Board's decision." See Memorandum Decision, p. 8. Whereas the Court has already considered and dismissed that argument, the Board will not revisit it. To the extent it is contended that the argument before the Court pertained to the duty to assist in obtaining the VA hospital summary and not the 1985 in-service hospitalization, the same result ensues. As the January 1985 hospital report was not received within the appeal period of the March 1987 rating decision, 38 C.F.R. § 3.156(b) does not apply. To the extent the representative argues that the DRO failed to assist the Veteran during his reopened claim, the DRO granted the claim for service connection prior to the submission of the missing service records. As the claim for service connection had been substantiated prior to receipt of that evidence, no further duty to assist was required. In summary, there is no basis for assignment of an effective date earlier than September 10, 2002 based on the argument that VA breached the duty to assist. Moreover, service connection for the Veteran's psychiatric disorder was granted prior to receipt of the missing service records and therefore, service connection was not granted "on the basis of the new evidence from the service department" and 38 C.F.R. § 3.156(c) does not apply. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than September 10, 2002, and the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An effective date earlier than September 10, 2002, for service connection for schizoaffective disorder is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs