Citation Nr: 1336250 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 01-00 249A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date prior to May 24, 1999, for the grant of service connection for schizophrenia, paranoid type. REPRESENTATION Appellant represented by: Joseph Moore, Attorney ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDINGS OF FACT 1. In September 1972, the Veteran filed claims of entitlement to service connection for a back disorder and a psychiatric disorder characterized as "head problems." The Veteran did not timely respond to a request for assistance in the development of this claim. 2. On February 7, 1975, the Veteran submitted a statement requesting that he be rescheduled for an examination in connection with his claim. 3. A September 1975 rating decision denied the claim of entitlement to service connection for a back disorder on the basis that it was not found on the last examination, and denied the claim of entitlement to service connection for a psychiatric disorder, characterized as "head problems," on the basis that no psychiatric disorder was found in service or post-service and that the condition claimed as "head problems" was noted to be an anti-social personality disorder, which was not a disability under the law. The Veteran was provided notice of that decision in a letter dated in October 1975. 4. In November 1975, the Veteran's representative filed a notice of disagreement as to the September 1975 denial of the claim of service connection for a back disorder. The notice of disagreement did not express disagreement with the denial of service connection for a psychiatric disorder claimed as "head problems." No timely notice of disagreement was submitted in response to the September 1975 denial of service connection for a psychiatric disorder. 5. In November 1975, the RO issued a statement of the case to the Veteran and his representative in response to the November 1975 notice of disagreement addressing only the issue of service connection for a back disorder. 6. In February 1976, the Veteran's representative submitted a VA Form 1-646, certifying that a statement of the case was furnished, review was desired on the evidence of record, and that the issues for consideration by the Board of Veterans Appeals were clearly defined. 7. In February 1977, the Board granted service connection for a back disorder. 8. In September 1988, the Veteran filed a claim for service connection for "emotional distress." 9. In a January 1989 rating decision, the RO stated that no change was warranted in the previous denial of service connection for a nervous condition. A timely notice of disagreement was not submitted in response to the denial of service connection for a nervous condition. 10. A November 1992 rating decision denied service connection for a psychiatric disorder, claimed as dementia with psychosis. A timely notice of disagreement was not submitted in response to the denial of service connection. 11. In a June 1995 rating decision, the RO determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a psychiatric disorder. A timely notice of disagreement was not submitted in response to the June 1995 denial of service connection for a psychiatric disorder. 12. In October 1995, the RO denied service connection for schizophrenia on a de novo basis. A timely notice of disagreement was not submitted in response to the October 1995 denial of service connection for schizophrenia. 13. Subsequent to the October 1995 final rating decision, the earliest document that can be considered a request to reopen the claim for service connection for a schizophrenia was a statement received from the Veteran on May 24, 1999. CONCLUSIONS OF LAW 1. The September 1975 rating decision that denied service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The January 1989 rating decision that denied service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 3. The November 1992 rating decision that denied service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 4. The June 1995 rating decision that determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 5. The October 1995 rating decision that denied service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 6. The criteria for an effective date prior to May 24, 1999, for the grant of service connection for schizophrenia, paranoid type, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As this appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection, the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Generic notice provided in the rating decision and statement of the case (SOC) has already provided the claimant with the notice of the law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). As to the duty to assist, VA obtained the Veteran's private and VA treatment records, and the Veteran has been provided VA examinations. Neither the Veteran nor his attorney has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Law and Regulations Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. When new and material evidence is received during the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. See 38 C.F.R. § 3.400(q)(1). If new and material evidence is received after a final disallowance, the effective date of an award of disability compensation based on new and material evidence shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). III. Attorney Argument The Veteran claims that he is entitled to an effective date of February 7, 1975 for the grant of service connection for schizophrenia. In a July 2012 appellant's brief, the Veteran's attorney asserted that the Veteran submitted a notice disagreement with all issues denied by a September 1975 rating decision, which included a denial of service connection for a psychiatric disability. He pointed out that although a statement of the case was issued in November 1975, it only addressed the claim for service connection for a back disability. The Veteran's attorney argues that the words used by the Veteran in the notice of disagreement, specifically, " . . . that I totally disagree with your decision of September 17, 1975" [emphasis added by attorney], clearly expressed the Veteran's disagreement with all aspects of the September 1975 rating decision, requiring VA to proceed with issuing a statement of the case regarding all issues denied in the September 1975 rating decision. The Veteran's attorney asserts that since the November 1975 statement of the case issued in response to the November 1975 notice of disagreement addressed only the claim of service connection for a back disorder, the Veteran's claim for service connection for a psychiatric disorder has been pending since he filed his original claim for "head problems" on February 7, 1975, and therefore, an effective date should be assigned effective from that date. IV. History The service treatment records in January 1967 indicate that the Veteran complained of occipital pressure type headaches and reported brief syncopal-like episodes. The Veteran reported that he had had the headaches on an almost daily basis since an automobile accident three months previously. A skull series revealed no abnormalities. The service treatment and personnel records show that the Veteran had a general pattern of poor discipline and uncooperativeness, which culminated in a suicide attempt by the ingestion of an excessive dose of Fiorinal. Upon psychiatric evaluation, he was found to have no evidence of physical or mental illness, but rather had the characterological defect of an antisocial personality. The staff psychiatrist who observed the Veteran for approximately a week following his suicide attempt specifically ruled out any schizophrenic reaction as the Veteran exhibited no psychotic behavior at all during the week of observation. The Veteran was noted to display an inability to profit from the experience of punishment, lack of loyalty, marked emotional immaturity, lack of sense of responsibility, impaired judgment, inability to control impulsive behavior, and overt hostility toward any military service. He was subsequently given a General Discharge by reason of unsuitability as a result of poor conduct. The General Discharge was upheld by the Department of Defense Discharge Review Program in January 1978. In November 1971, the Veteran submitted a claim for service connection for a "lower back condition caused by an auto accident in November 1966." In February 1972, the RO promulgated a deferred rating decision, pending receipt of additional records. In September 1972 the Veteran submitted another claim for service connection for a back disorder. He also stated on the form that he sometimes had a tight feeling in the back of his head that was uncomfortable. He reported head pains since October 1966. He also reported treatment at Tripler Army Hospital for back treatment and head problems during service. In October 1972, the RO requested assistance from the Veteran in the development of his claim. There is no indication that the assistance was provided and the September 1972 claim was ostensibly considered abandoned by the RO. On February 7, 1975, the Veteran submitted a statement requesting that he be rescheduled for an examination in connection with his disability claim. This statement was construed by the RO as a reopened claim. Based upon the Veteran's reopened claim, he was afforded a VA examination in August 1975. On VA neurological, psychiatric, and personality examination the Veteran was found to be within normal limits, with the examiner noting that the military record revealed a history of antisocial personality. There were no complaints or findings related to the Veteran's head. In a September 1975 rating decision the RO denied service connection for a back condition on the basis that it was not shown on the August 1975 examination. The RO also denied the Veteran's claim for service connection for "head problems" on the basis that a psychiatric disorder was not shown in service, there were no findings of a nervous condition in the August 1975 examination, and an anti-social personality disorder was a constitutional or developmental abnormality and not a disability under the law. In an October 1975 letter, the RO indicated that the Veteran's claims for service connection were being denied because a back condition was not found on last examination and head problems were not a disability under the law. A notice of disagreement (NOD), ostensibly prepared and executed by the Veteran's service representative, was received by the RO in November 1975. This document stated as follows: "This is to advise you that I totally disagree with your decision of September 17, 1975. I did hurt my back in an automobile accident while in the service. My back pains me now, and I am of the firm belief that this is the result of the accident." In response to that notice of disagreement, in November 1975, the RO issued a statement of the case to the Veteran and his representative that addressed the issue of entitlement to service connection for a back condition. In the cover letter of the statement of the case, the RO advised that that the statement of the case was an explanation of what was done so that the best argument could be made as to why their ruling should be changed. The letter further advised that the Veteran should state what benefit he wanted, what facts in the statement he disagreed with, and any error the RO made in applying the law. In February 1976, the Veteran's representative submitted a VA Form 1-646, certifying that a statement of the case was furnished, review was desired on the evidence of record, and that the issues for consideration by the Board of Veterans Appeals were clearly defined. Ultimately, in February 1977 the Board granted service connection for residuals of a back injury. The documents of record subsequent to the September 1975 rating decision, including private medical records, VA medical records, and statements by the Veteran, make no mention of any psychiatric disorder or complaint, until September 1988. In a September 1988 letter the Veteran asserted that he had "emotional distress" due to service. In January 1989 the RO issued a confirmed rating decision and informed the Veteran that no change was warranted in the previous denial of service connection for a nervous condition. The Veteran did not appeal this rating decision. In July 1992 the Veteran wrote to the RO stating that he was treated for a psychiatric condition during service and requested service connection. A July 1992 VA treatment record contains the earliest recorded diagnosis of schizophrenia. VA neuropsychiatric testing in September 1992 also indicated presenile dementia. A November 1992 rating decision denied service connection for dementia with psychosis. The Veteran did not appeal this rating decision. In March 1995 the Veteran submitted a claim for service connection for schizophrenia. A June 1995 rating decision determined that new and material evidence to reopen the claim for service connection for a psychiatric disorder had not been submitted. Subsequently, additional service treatment records were obtained and in an October 1995 rating decision the RO denied service connection for a psychiatric disorder on a de novo basis. The Veteran did not appeal this decision. Following the October 1995 final rating decision, the Veteran submitted a claim for service connection for Posttraumatic stress disorder (PTSD) in April 1999, and he submitted a claim for service connection for schizophrenia in May 1999. The December 2008 rating decision on appeal granted the Veteran service connection for schizophrenia, effective from May 24, 1999, the date of receipt of his reopened claim. V. Analysis As explained below, the Board finds that the Veteran is not entitled to an effective date prior to May 24, 1999 for service connection for schizophrenia. Essentially, this case turns squarely upon whether the November 1975 notice of disagreement submitted by the Veteran's representative was written "in terms which can reasonably construed as evidencing a desire for a review of the denial of that determination" in the September 1975 rating decision that denied service connection for a psychiatric disorder. 38 C.F.R. § 19.113 (1975). In his argument, the Veteran's attorney focused exclusively upon the initial sentence of the Notice of Disagreement in which the Veteran advised that he "totally" disagreed with the decision of September 1975, explicitly arguing that the word "totally" meant that the Veteran disagreed with the total decision, to wit, both the denial of service connection for a back disorder as well as the denial of service connection for a psychiatric disorder. In so doing, the Veteran's attorney chose to ignore the next two sentences in the November 1975 notice of disagreement in which the Veteran, through his representative, explained precisely which of the two determinations made in the September 1975 rating decision he wished to have reviewed; namely the denial of service connection for a back disorder. The governing rule of construction regarding a drafter's intent when the language of a legal document is ambiguous, such as in the case of the notice of disagreement before us, is that one must take into consideration the entire text, or as is often said, the four corners of the document. One cannot just pick and choose those words or sentences which one finds more favorable to a particular position. Thus, in order to reasonably construe the Veteran's "desire" (or intention) with respect to this notice of disagreement, we cannot limit ourselves to one word or one sentence, but must look at the entire document. In viewing the four corners of this notice of disagreement only one interpretation is reasonable, that the Veteran was evincing only the desire for a review of the determination that denied service connection for a back disorder. It was upon that issue that the Veteran narrowed his focus. No specific mention was made of the denial of service connection for "a head problem," an anti-social personality disorder, or a psychiatric disorder. It was the determination that denied service connection for a back disorder that the Veteran "totally" disagreed; he never expressed total disagreement with both determinations; he did, however, elaborate as to why he "totally" disagreed with the denial of service connection for the back disorder. The Board is reminded that the Veteran had representation at that time and that the Veteran's representative was actively involved in the Veteran's promulgation of the appeal. In fact the Veteran's representative drafted, signed, and submitted the November 1975 notice of disagreement in question. Following the issuance of the November 1975 statement of the case that was limited to the claim for a back disorder, neither the Veteran nor his representative gave any indication or made any argument regarding what the Veteran's attorney is now alleging, namely that the Veteran's disagreement with the denial of the claim of service connection for a psychiatric disorder was ignored in 1975. It is important to note that a statement of the case was issued which effectively disclosed that the November 1975 notice of disagreement was construed solely as a desire by the Veteran for a review of the denial of service connection for a back disorder. The RO was under no duty to send the Veteran or his representative a separate notice that the notice of disagreement in question was not considered a notice of disagreement with the denial of service connection for a psychiatric disorder. The fact that the Veteran's representative subsequently certified that the November 1975 statement of the case cleary defined the issues for consideration by the Board of Veterans Appeals is no small matter in this discussion. The fact that the Veteran did not bring up the matter of service connection for a psychiatric disorder again for 13 years (and only after additional evidence of a current psychiatric disability was found), supports the finding of that he was not in disagreement with the September 1975 rating decision as it pertained to a psychiatric disorder. Accordingly, the Board finds that a timely notice of disagreement was not submitted with respect to the September 1975 denial of the claim for service connection for a psychiatric disorder, and consequently, the September 1975 denial of the claim of service connection for a psychiatric became final and has not been pending since February 1975, as argued by the Veteran and his attorney. In a September 1988 letter the Veteran asserted that he had "emotional distress" due to service. In response, the RO issued a confirmed rating decision in January 1989 and informed the Veteran that no change was warranted in the previous denial of service connection for a nervous condition. The Veteran did not appeal this rating decision and it became final. 38 U.S.C.A. § 7105 (West 2002). As noted above, following receipt of additional service treatment records, the RO denied service connection for a psychiatric disorder on the merits in an October 1995 rating decision. The RO sent the Veteran a letter in October 1995 informing him of the denial of his claim and informing him of his appellate rights. The Veteran did not appeal that decision and it became final. 38 U.S.C.A. § 7105 (West 2002). Subsequent to the October 1995 final rating decision, the first document that can be considered a request to reopen a claim for service connection for schizophrenia was the letter received from the Veteran on May 24, 1999. Following that May 24, 1999, request, the Board's October 2006 decision reopened the Veteran's claim based on new and material evidence. When new and material evidence is received after final disallowance of a claim, the effective date of an award of service connection will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). In this case, schizophrenia is shown since July 1992, therefore, the date of receipt of claim, is later than the date entitlement arose. Consequently, the Veteran is entitled to an effective date of May 24, 1999, the date of receipt of the reopened claim, but no earlier. Accordingly, an effective date prior to May 24, 1999, for a grant of service connection for schizophrenia is not warranted. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. ORDER An effective date prior to May 24, 1999, for the grant of service connection for schizophrenia, paranoid type, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs