Citation Nr: 1609616	
Decision Date: 03/09/16    Archive Date: 03/15/16

DOCKET NO.  12-16 612	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial disability rating higher than 10 percent for schizophrenia, paranoid type.

2.  Entitlement to an effective date prior to August 5, 2002, for service connection for schizophrenia, paranoid type.  


REPRESENTATION

Appellant represented by:	Vietnam Era Veterans Association


ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel



INTRODUCTION

The veteran served on active duty in the U.S. Army from September 1970 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for schizophrenia, paranoid type, with a rating of 10 percent effective August 5, 2002.

In May 2014, the Board remanded these claims for additional development.  The case has been returned to the Board for appellate consideration.

The issue of entitlement to an initial disability rating higher than 10 percent for schizophrenia, paranoid type is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

There is nothing of record prior to August 5, 2002, that may be construed as a formal or informal claim of entitlement to service connection for schizophrenia, paranoid type.  


CONCLUSION OF LAW

The criteria for an effective date earlier than August 5, 2002, for the grant of service connection for schizophrenia, paranoid type, have not been met. 38 U.S.C.A. §§ 5110, 5107(b) (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Board observes that the Veteran's claim of entitlement to an earlier effective date for service connection for schizophrenia is a downstream issue from the grant of entitlement. Grantham v. Brown, 114 F.3d 1156 (1997).  VA's General Counsel has held that no Veterans Claims Assistance Act of 2000 notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).

Relevant to the duty to assist, the Veteran did not identify any relevant outstanding evidence in connection with his claim.  Thus, the Board finds that VA has fully satisfied the duty to assist and the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Earlier Effective Date for the Grant of Service Connection

Except as otherwise provided, 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 a 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(a); 38 C.F.R. § 3.400.  The effective date upon receipt of new and material evidence after a final disallowance 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)(2).  If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2).

The Veteran's service connection claim for schizophrenia was received by VA on August 5, 2002.  In a January 2010 rating decision, the RO granted the Veteran service connection for schizophrenia, paranoid type, assigning an effective date of August 5, 2002, the date his claim was received.  

In an April 2014 appellate brief, the Veteran's representative specifically requested that that a 1978 rating decision denying entitlement to service connection for a mental condition be revised based on clear and unmistakable error.  The Board remanded this claim in March 2014, directing that the RO adjudicate the issue of whether there was clear and unmistakable error in an April 1978 rating decision that denied service connection for schizophrenic reaction, chronic undifferentiated type.  In a July 2015 rating decision, the RO found no clear and unmistakable error in the April 1978 rating decision.  The Veteran has not appealed this decision, and it is not in appellate status.  Thus, Board review of this decision is not proper, and the April 1978 rating decision still stands as a valid final decision.  

The remaining issue is whether there is any other basis for the assignment of an effective date earlier than August 5, 2002, for the January 2010 grant of service connection for schizophrenia, paranoid type.  The Board finds that there is not.  In reviewing the evidence to determine whether any communication submitted by the Veteran indicated an attempt to apply for service connection for schizophrenia in the interim years following the April 1978 denial, no document submitted prior to August 5, 2002, indicates an intent to pursue a claim of entitlement to service connection for schizophrenia.  

As noted, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

The Board has reviewed the Veteran's statements and the evidence of record.  The evidence of record simply does not support that award of an earlier effective date for the grant of service connection for schizophrenia, paranoid type.  There is no reasonable doubt to be resolved as to this matter.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102, 4.3 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

An effective date earlier than August 5, 2002, for the award of service connection for schizophrenia, paranoid type, is denied.  


REMAND

Throughout the pendency of the appeal, the Veteran has been incarcerated.  In the May 2014 remand, the Board directed the RO to ascertain whether the Veteran remains incarcerated, as his status was ambiguous at that time.  If the Veteran had been released, the RO was to afford the Veteran a VA examination to assess the current severity of his service-connected schizophrenia disability.  The Veteran submitted a May 2015 correspondence, reflecting that he was still incarcerated, and no examination was scheduled.  The matter was subsequently returned to the Board for adjudication.

After a review of the record, the Board notes that VA has yet to obtain a thorough assessment of the current severity level of the Veteran's psychiatric disability.  As such, an adjudication of the matter would be premature absent a comprehensive effort to obtain such an examination.  

The Secretary's duty to assist claimants in obtaining evidence is set forth, by regulation, at 38 C.F.R. § 3.159(c) (2015).  This duty may include obtaining records and providing a medical examination. See id.  The Court recognizes that incarcerated veterans "are entitled to the same care and consideration given to their fellow veterans." Bolton v. Brown, 8 Vet.App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet.App. 190, 193 (1991)). The Court has cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement." Id.

Accordingly, the RO should make efforts to obtain the necessary examination despite the Veteran's incarceration.  If an examination cannot be obtained with VA examiners, the RO should determine if the medical staff at the correctional facility can provide the Veteran with a medical examination adequate for VA purposes.  If the RO is unsuccessful in its attempts to obtain the examinations, an explanation as to why the examinations could not be obtained should be included in the record.

The Board is aware of a July 2010 VA examination note which documents VA's inability to conduct exams of incarcerated Veteran's given local VA policy.  However, this does not preclude other avenues for providing a psychiatric assessment of the Veteran's mental health, as noted by the Court in Bolton, supra.  These potential avenues must be explored in order obtain an assessment of the current severity of the Veteran's psychiatric disability. 

Accordingly, the case is REMANDED for the following action:

1.  The RO should make efforts to obtain the necessary examination discussed below despite the Veteran's incarceration.  If an examination cannot be obtained using VA examiners, the RO should determine if the medical staff at the correctional facility can provide the Veteran with a medical examination adequate for VA purposes.  If the RO is unsuccessful in its attempts to obtain the examinations, an explanation as to why the examinations could not be obtained should be included in the record.

Schedule the Veteran for a VA examination to determine the current severity of his service-connected schizophrenia.  The examiner must review the claims file and must note that review in the report.  Any testing deemed necessary should be accomplished. 

2.  Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).




Department of Veterans Affairs