Citation Nr: 1604036 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 14-20 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than September 17, 1999 for the award of service connection for schizophrenia. REPRESENTATION Appellant represented by: Matthew Hill, Attorney at Law ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to December 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, implemented a November 2010 Board decision's award of service connection for schizophrenia and assigned an initial 100 percent evaluation effective September 17, 1999. In June 2015, the Veteran's representative filed a request under the Freedom of Information Act (FOIA) for a copy of a VA Field Examination memorandum received by VA on June 8, 2015. This request was made in connection with a competency determination separate from the appeal currently before the Board. The claims file does not indicate that any action has been taken in response to the representative's request, and this matter is referred to the agency of original jurisdiction (AOJ) for the appropriate action. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for a neuropsychiatric disorder was received on September 8, 1992. 2. The September 1992 claim for service connection was denied in a Board decision dated July 23, 1999, but this decision was revoked by the passage of The Veterans Claims Assistance Act of 2000 (VCAA) and the Board's August 2001 order to the RO to readjudicate the claim. 3. Service connection for schizophrenia was awarded in a November 2010 Board decision. The RO assigned an initial 100 percent evaluation for the disability in an April 2011 rating decision effective September 17, 1999. 4. Entitlement to service connection for schizophrenia arose during the Veteran's active duty service and the date of claim, September 8, 1992, is the later of the two dates. CONCLUSION OF LAW The criteria for an earlier effective date September 8, 1992, but not earlier, for the award of service connection for schizophrenia are met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.159, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for schizophrenia was awarded in a November 2010 Board decision. The decision was implemented by the RO in the April 2011 rating decision on appeal which assigned an initial 100 percent evaluation for the disability effective September 17, 1999, the date the RO determined the claim was received. The Veteran contends that an earlier effective date is warranted for the award of service connection as his claim was initiated in September 1992. Although the Board previously denied service connection for a neuropsychiatric disorder in July 1999, the Veteran contends this decision was abrogated by the passage of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) and a final decision was not rendered on the 1992 claim for service connection until the Board's decision in November 2010. Except as otherwise provided, 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. 38 C.F.R. § 3.400 (2015). The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The Veteran's initial claim for entitlement to service connection for a nervous condition was received by VA on September 8, 1992. The claim was denied by the RO in San Juan, Puerto Rico in a February 1993 rating decision. The Veteran disagreed with the denial of service connection and perfected an appeal of the February 1993 rating decision. On July 23, 1999, the Board denied the claim for entitlement to service connection for an acquired neuropsychiatric condition on the basis that it was not well grounded. On September 17, 1999, the Veteran filed a claim to reopen service connection for a neuropsychiatric disorder. The claim was denied in a January 2000 rating decision by the St. Petersburg RO and again appealed to the Board. In an August 2001 decision, the Board remanded the case for additional development to include the readjudication of the claim by the RO in compliance with the provisions of the VCAA. The Board observed that the VCAA provides for the readjudication of certain claims denied or dismissed as not well grounded in final decisions issued between July 14, 1999 and November 9, 2000. The Board also stated it possessed the authority to initiate such readjudication under section 7(b) of the VCAA and in compliance with a recent memorandum by VA's General Counsel. See VACOPGCPREC 3-2001. The claim for entitlement to service connection for a neuropsychiatric disorder returned to the RO and was readjudicated and denied on a de novo basis in a June 2006 supplemental statement of the case (SSOC). The Veteran expressed disagreement with the continued denial of his claim in a June 2006 statement. The appeal was then denied by the Board in a July 2008 decision, but the Veteran appealed the denial to Court of Appeals for Veterans Claims (Court). In June 2009, the Court granted a Joint Motion for Remand filed by the parties vacating and remanding the Board's July 2008 decision. The appeal returned to the Board where service connection for schizophrenia was granted in a November 2010 decision. The RO implemented the Board's award of service connection in the April 2011 rating decision on appeal, assigning a 100 percent evaluation and an effective date of September 17, 1999. The Board finds that the current award of service connection for schizophrenia originates from the initial September 8, 1992 claim, and not the September 17, 1999 claim to reopen identified by the RO in the April 2011 rating decision. Although the Board denied the claim for service connection for a neuropsychiatric disorder in a decision dated July 23, 1999, this decision was based on a finding that the claim was not well grounded. As observed by the Board in its August 2001 remand, the VCAA eliminated the requirement of a well-grounded claim and in section 7(b)(1) required in certain cases that the RO readjudicate the Veteran's claim "as if the [prior] denial or dismissal had not been made." The VCAA provided that readjudication was necessary if the previous decision denying the claim became final during the period from July 14, 1999 to November 9, 2000, was based on a finding that the claim was not well grounded, and a request for readjudication was filed by the claimant or the Secretary of VA not later than two years after the date of enactment, i.e. before November 9, 2002. The Board's denial of service connection for a neuropsychiatric disorder was issued on July 23, 1999 and was based on a finding that the claim was not well grounded. Readjudication was also ordered by the Board in its August 2001 remand, within the statutory two year time limit. See VACOPGCPREC 3-2001 (holding that the Board is authorized to initiate readjudication under the provisions of the VCAA on behalf of the Secretary). Thus, in compliance with section 7(b)(1), the Board's August 2001 remand instructions to readjudicate the claim due to the passage of the VCAA essentially vacated the July 1999 Board decision and VA was to proceed as if the decision had not been made. The September 1992 claim for service connection was therefore still pending and was not finally adjudicated until the benefit sought was granted in full by the Board's award of service connection for schizophrenia in November 2010. Therefore, the date of claim for the purposes of determining the appropriate effective date in this case is September 8, 1992. The analysis in this case does not end simply end because the Board finds that the Veteran's claim for service connection was received on September 8, 1992. The Board must still determine when entitlement to the benefit arose. 38 C.F.R. § 3.400(b)(2)(i). In its November 2010 decision granting service connection for schizophrenia, the Board found that the evidence weighing for and against the claim was in relative equipoise. The record contained lay evidence indicating that the Veteran experienced a great deal of stress and anxiety during active duty and began mental health treatment in 1978 soon after separation from military service. However, the record also contained numerous medical opinions against the claim as well as evidence establishing that the Veteran was involved in a serious post-service motor vehicle accident in 1986 resulting in a significant downward mental spiral. In the end, the Board's decision to grant the claim was based on the July 2010 opinion of an independent medical examiner (IME) who provided competent medical evidence in support of the Veteran's contentions. With receipt of the July 2010 IME opinion, the evidence was brought into equipoise and the Board resolved all reasonable doubt in favor of the Veteran and granted the claim. Although the IME opinion was received by VA in July 2010, this evidence establishes that the Veteran's schizophrenia had its onset during active duty service. The Board therefore finds that entitlement to service connection for schizophrenia arose during active duty service when the disability first manifested. As noted above, 38 C.F.R. § 3.400 clearly provides that the appropriate effective date for a grant of service connection for an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. In this case, the Veteran's claim for service connection was received in September 1992, clearly after the date entitlement to the benefit arose in 1976 or 1977. Therefore, the appropriate effective date for the award of service connection for schizophrenia is September 8, 1992, the date the claim for service connection was received. To this extent, the claim for an earlier effective date is granted. Duties to Notify and Assist VA has certain duties to notify and assist a veteran in the substantiation of a claim. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the Veteran initiated an appeal regarding the effective date assigned following an award of service connection. The claim for service connection for schizophrenia is substantiated and the filing of a notice of disagreement (NOD) as to the April 2011 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2014). Rather, the Veteran's appeal as to the effective date assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the AOJ must issue a SOC if the NOD is not resolved either by grant of the benefit sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The May 2014 SOC set forth the relevant criteria for the claim on appeal and the appellant was thus informed of what was needed to establish an earlier effective date for the award of service connection. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an earlier effective date for the disability at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. A VA examination is not necessary with respect to the claim for an earlier effective date as the evidence pertinent to this claim consists of information already contained in the claims file. For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an earlier effective date of September 8, 1992, but not earlier, for the award of service connection for schizophrenia is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs