Citation Nr: 1340779	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO. 12-16 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an effective date earlier than July 17, 2009, for the grant of service connection for a psychotic disorder, not otherwise specified (NOS).


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel






INTRODUCTION

The Veteran served on active duty from June 1975 to June 1979.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connected for a psychotic disorder NOS and assigned an effective date of July 17, 2009.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1. The Veteran's original claim for entitlement to service connection for a psychotic disorder NOS was filed in December 2000, more than one year after his separation from service, and entitlement to service connection was denied by the RO in a July 2001 rating decision.  The Veteran did not appeal.

2. The Veteran filed to reopen the previously denied claim of service connection for a psychotic disorder NOS on June 30, 2005, which was denied in a November 2005 rating decision.  The Veteran did not appeal.

3. The Veteran filed a second petition to reopen the claim of service connection for a psychotic disorder NOS on July 17, 2009, and in a December 2009 rating decision the RO granted service connection and assigned a 100 percent disability rating, effective July 17, 2009.

4. Prior to the July 2009 petition to reopen, there were no pending requests for service-connection that remained unadjudicated, and no appeals or new and material evidence were submitted during the applicable appellate periods.
CONCLUSION OF LAW

The criteria for an effective date prior to July 17, 2009 for the award of service connection for a psychotic disorder NOS have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the appeal arises from the Veteran's disagreement with the initial evaluation 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.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA medical records, and identified private medical records were obtained in connection with the service connection claim. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. Therefore, the Board finds that the duty to assist has been fulfilled.

II. Earlier Effective Date

Generally, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). In cases where service connection was granted on the basis of new and material evidence following a prior disallowance, the effective date is the later of the date of receipt of the application to reopen or the date entitlement arose. See 38 U.S.C.A. § 5110; 38 C.F.R. 
§ 3.400(q)(2).

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. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Further, where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date the VA received the particular application for which the benefits were granted. Washington v. Gober, 10 Vet. App. 391 (1997).

A claim is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a). Additionally, a rating decision will not become final if the Veteran submits new and material evidence within the one year appellate period. See 38 C.F.R. § 3.156(a)-(b). 

The Board has considered whether an earlier effective date can be assigned based on all of the Veteran's claims, regardless of whether the claims were filed for a psychotic disorder NOS, schizo affective disorder, schizophrenia, or other disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran contends that he is entitled to an effective date earlier than July 17, 2009, not otherwise specified. The preponderance of the evidence is against a finding that an earlier effective date is warranted in this case.

The Veteran applied to reopen his previously denied claim on July 17, 2009. The claim was reopened and service connection granted in a December 2009 rating decision. As service connection was granted based on the reopening of a claim, the appropriate effective date is the date of his petition to reopen his claim, which is July 17, 2009. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2); Washington, 10 Vet. App. 391.

The Board finds there are no unadjudicated applications for service connection, unaddressed notices of disagreement, or new and material evidence prior to the Veteran's July 2009 application to reopen. The Veteran originally filed for service connection for his psychotic disorder NOS (then claimed as schizo affective disorder) in December 2000. As the claim was filed more than one year after the Veteran's separation from service in June 1979, the day following his separation from service cannot serve as an effective date. See 38 C.F.R. § 3.400(b)(ii)(b). 

The original December 2000 claim was denied in a July 2001 rating decision. The Veteran did not perfect an appeal or submit new and material evidence during the appellate period, and therefore the July 2001 decision became final in July 2002. 38 C.F.R. §§ 3.156, 20.302(a). In June 2005, the Veteran filed a petition to reopen his claim for service connection, which was denied in an October 2005 rating decision. The Veteran again did not appeal or submit new and material evidence during the applicable period. Therefore, the November 2005 decision became final in November 2006. 38 C.F.R. §§ 3.156, 20.302(a). At no other time has the Veteran communicated an intent to apply for service connection for his psychotic disorder NOS or any other mental disorder, and as such there are no other outstanding unadjudicated applications for service connection. See 38 C.F.R. § 3.155(a).

Other than filing a petition to reopen, the finality of VA decisions can only otherwise be challenged through an allegation of clear and unmistakable error (CUE) in a prior, final decision. 38 U.S.C.A. §§ 5109A, 7111; Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). In order for CUE to be reasonably raised, the Veteran must, as a threshold matter, plead with some degree of specificity as to what the alleged error is. Fugo v. Brown, 6 Vet. App. 40 (1993). If CUE is pled with sufficient specificity, then the Veteran must also give persuasive reasons as to why the decision would have been manifestly different but for the alleged error. Id. Allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. 

Here, it is clear that the Veteran never, with any specificity, alleged CUE. The Veteran at no point states that he believes there was a specific error made in the July 2001 or November 2005 rating decisions, or even that the decisions were erroneous generally. In his statements, the Veteran indicates that if he had known how to obtain VA treatment he would have done so sooner and, therefore, is entitled to an earlier effective date.  This does not rise to the level of pleading CUE. Furthermore, for the reasons discussed above, it does not entitle the Veteran to an earlier effective date.

The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). As there are no outstanding unadjudicated claims prior to the Veteran's July 17, 2009, claim to reopen and CUE has not been alleged with sufficient specificity, the Board finds that an effective date earlier than July 17, 2009, is not warranted in this case.


ORDER

Entitlement to an effective date earlier than July 17, 2009, for the grant of service connection for a psychotic disorder NOS is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs