Citation Nr: 1730004 Decision Date: 07/28/17 Archive Date: 08/04/17 DOCKET NO. 17-02 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than June 3, 2011, for the grant of service connection for schizoaffective disorder bipolar type with posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than January 31, 2012, for the grant of service connection for tardive dyskinesia. REPRESENTATION Appellant represented by: Pedro Arellano Lamar ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from November 1977 to October 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board videoconference hearing was requested in conjunction with the filing of the February 2015 notice of disagreement. However, a May 2016 VA Form 27-0820 made clear that a hearing with a Decision Review Officer (DRO) was not desired by the Veteran or his representative and no optional Board hearing was requested in the January 2017 VA Form 9. Given the foregoing, the Board deems the request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (2016). The Veteran's representative is providing representation under 38 C.F.R. § 14.630. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran filed a formal claim to establish service connection for disorders of the back, left shoulder and head that was received by the RO on June 3, 2011. 2. The Veteran filed a supplemental claim for service connection for PTSD that was received on June 13, 2011; and a supplemental claim for service connection for schizoaffective disorder and tardive dyskinesia that was received on October 9, 2012. 3. Correspondence received August 29, 2011 raised an informal claim for tardive dyskinesia. 4. There is no indication, and the Veteran has not alleged, that a claim for service connection for any disability was filed prior to June 3, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 3, 2011, for the grant of service connection for schizoaffective disorder bipolar type with PTSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2016). 2. The criteria for an effective date of August 29, 2011, but no earlier, for the grant of service connection for tardive dyskinesia have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2016); 38 C.F.R. § 3.155 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). With respect to the assertion that the Veteran is entitled to earlier effective dates for the grant of service connection for schizoaffective disorder bipolar type with PTSD and tardive dyskinesia, the United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). With respect to VA's duty to assist a claimant, the Board finds it has been satisfied since the Veteran's service treatment records are on file, as are various post-service medical records. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 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 all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the electronic file shows, or fails to show, with respect to the claims. 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 Veteran filed a formal claim to establish service connection for disorders of the back, left shoulder and head that was received by the RO on June 3, 2011. See VA Form 21-526. He filed a supplemental claim to establish service connection for PTSD that was received by the RO on June 13, 2011. See VA Form 21-526b. The RO issued a rating decision in March 2012 that, in pertinent part, denied service connection for a head injury and PTSD. A request for reconsideration was received by the RO in May 2012, and a July 2012 rating decision confirmed and continued the prior denial of those claims. The Veteran filed a supplemental claim that was received by the RO on October 9, 2012; he sought service connection for schizoaffective disorder on a direct basis and service connection for tardive dyskinesia ("the shakes") on a secondary basis. See id. The RO issued a rating decision in August 2013 that denied both claims. A notice of disagreement to the March 2012 and July 2012 rating decisions was received in March 2013. A VA Form 21-4138 received in November 2013 was treated by the RO as a notice of disagreement to the August 2013 rating decision. The RO issued a statement of the case in October 2014 and the Veteran perfected an appeal in December 2014. Shortly after perfecting his appeal, service connection was granted for schizoaffective disorder bipolar type with PTSD and for tardive dyskinesia secondary to the schizoaffective disorder bipolar type with PTSD. The RO assigned a 100 percent evaluation for the psychiatric disability effective June 3, 2011, noting that this was the date it received the Veteran's original claim for service connection with numerous documents to support his claim for mental disorder, also claimed as traumatic brain injury. A noncompensable (zero percent) rating was assigned for the tardive dyskinesia effective January 31, 2012, which the RO noted was the date on which the claim had been received. See December 2014 rating decision. The Veteran, through his brother acting as his representative, asserts that he is entitled to an effective date of January 1, 1982, the date on which it was established by his psychiatrist and family members that he was 100 percent disabled. In support of this assertion, the Veteran contends that VA overlooked or ignored medical opinions that stated he was 100 percent disabled as a result of his service-connected schizoaffective and post traumatic disorders and that he was so ill that he could not realize that he was entitled to and needed to make an application for service-connected disability benefits. See February 2015 statement in support of claim. In a February 2015 letter to the VA Under Secretary for Benefits, the Veteran's brother asserts that the medical opinion of the Veteran's psychiatrists establishes that due to his illness, the Veteran could not and did not understand that he was gravely mentally ill and unable to work since on or before January 1, 1982. He further stated that as a result of this grave mental illness, the Veteran could not and did not apply for service-connected benefits until after he lost his father and principal source of support in December 2010. It was at this time, having no income, that the Veteran's brother, with the help of his psychiatrists, was able to convince him to file the June 3, 2011 application. In a May 2016 VA Form 21-4138, the Veteran's brother asserts that there was error in the December 2014 rating decision because it did not consider medical documentation from the Veteran's psychiatrists since 1981 establishing that the Veteran was 100 percent disabled. It was again noted that an effective date of January 1, 1982 was sought as this was the date the Veteran came home disabled from the Navy and as established by his psychiatric records that were part of the record that the RO failed to consider. In the January 2017 VA Form 9, the Veteran's brother asserts that it was error for the RO to deny the Veteran the service connection to which he was entitled as of October 30, 1981, the day after he was discharged from active service, based on the psychosis, delusions, schizoaffective disorders, paranoia and anxiety (including PTSD) that was documented by his psychiatrists from November 1981 to the present and submitted as part of his claim. The Veteran's brother cited to 38 C.F.R. § 3.309 and resubmitted several opinions that were received in conjunction with the original claim for service connection, which he asserts supports a finding that the Veteran had been suffering from a psychiatric disorder and tardive dyskinesia on a continuing basis since 1981 and that his psychiatric disorder left him completely disabled as of 1981. The Veteran's brother again asserts that error was committed when these medical opinions were ignored. The effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2014). An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Upon review of the record, the Board finds the RO assigned the earliest possible effective date for its grant of service connection for schizoaffective disorder bipolar type with PTSD. Specifically, although the supplemental claim for PTSD was not received until June 13, 2011, and the supplemental claim for schizoaffective disorder was not received until October 9, 2012, the RO clearly indicated that it had considered the original claim for head injury received on June 3, 2011, as part of the claim for a psychiatric or mental disorder. There is no indication from review of the claims file, and neither the Veteran nor his representative has alleged, that a claim was filed prior to receipt of the June 3, 2011 VA Form 21-526. In fact, the Veteran's representative, who is his brother, has candidly acknowledged that it was not until after their father, who was the Veteran's principal source of support, died in December 2010 that the Veteran, having no income, was able to be convinced by his brother and his psychiatrists to file the June 3, 2011 application. See February 2015 letter to the VA Under Secretary for Benefits. The Veteran in essence contends that the effective date for the grant of service connection for schizoaffective disorder bipolar type with PTSD should be based on the date his psychiatric disability was incurred, in other words, immediately after his discharge from service, or, at the latest, as of January 1, 1982. However, the law governing effective dates is clear: the effective date is the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (emphasis added). Although it has been determined that the Veteran's schizoaffective disorder bipolar type with PTSD is related to service, it does not follow that just because service connection is warranted, the effective date of a grant of service connection should be during the time frame in which the incident that formed the basis of the grant occurred or the day following service, since doing so would render meaningless many of the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Here, the Veteran's original claim for benefits was received approximately 30 years after his discharge from service. Thus, under the law, there is no basis to assign an effective date for service connection for schizoaffective disorder bipolar type with PTSD earlier than the date his original application was received. In regards to the claim for an effective date earlier than January 31, 2012 for the grant of service connection for tardive dyskinesia, the Board notes the claim specifically seeking that benefit was received on October 9, 2012. However, in a statement received on August 29, 2011 requesting expedited processing of the Veteran's compensation claim, the Veteran's representative mentioned parkinsonism. The Veteran claimed his tardive dyskinesia as hand shaking. The Board notes that the February 13, 2012 VA examination noted the Veteran had tardive and neuroleptic induce parkinsonism. Resolving all doubt in the Veteran's favor, the Board finds that the August 29, 2011 statement constitutes an informal claim for the tardive dyskinesia, and that the proper effective date for that disability is August 29, 2011. However, the Veteran in essence contends that the effective date for the grant of service connection for tardive dyskinesia should be based on the date his disability was incurred, or, at the latest, as of January 1, 1982. In this case, the date of claim of August 29, 2011 is later than the date entitlement for service connection for tardive dyskinesia arose. Thus, an effective date earlier than August 29, 2011 is not warranted. Moreover, although the tardive dyskinesia was granted as being secondary to the service-connected psychiatric disorder, the effective date assigned for a secondary condition does not automatically revert to the effective date of service connection for the primary condition. Rather, the effective date is based on the date of claim or date entitlement to the secondary disability arose. Ellington v. Nicholson, 22 Vet. App. 141 (2007); see also Ross v. Peake, 21 Vet. App. 528, 531 (2008); 38 C.F.R. § 3.400. In this case, the earliest claim for tardive dyskinesia is August 29, 2011. At this juncture, the Board will address several assertions raised in support of the claims for earlier effective dates. First, the assertion has been raised that the Veteran's mental illness prevented him from filing a claim earlier than June 3, 2011. 38 U.S.C.A. § 5110 (4)(A) and 38 C.F.R. § 3.400 (b)(ii)(B) authorize VA to assign an effective date earlier than the date of claim when a disability is so incapacitating that it prevents the claimant from filing the claim earlier. However, both provisions apply only to claims for disability pension, rather than service-connected compensation. As disability pension and service-connected compensation are distinct benefits, those regulations do not apply in the instant case. Additionally, to the extent the representative's argument is one for equitable tolling, case law has established that with respect to the question of equitable tolling for purposes of establishing an award of retroactive benefits, there is an "unequivocal command in 38 U.S.C. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore." Rodriguez v. West, 189 F.3d 1351 (Fed.Cir.1999), reh'g denied (en banc), cert. denied, 529 U.S. 1004, 120 (2000); see also Andrews v. Principi, 16 Vet. App. 309, 312 (2002). Second, the assertion has been raised that the RO committed error in the December 2014 rating decision that is the subject of this appeal because it did not consider medical documentation from the Veteran's psychiatrists that the Veteran was 100 percent disabled on or before January 1, 1982, and did not consider 38 C.F.R. § 3.309, which provides that service connection for psychosis may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. The assertion that 38 C.F.R. § 3.309 was not considered was accompanied by the contention that the Veteran was entitled to service connection as of October 30, 1981, the day after he was discharged from active service, based on the psychosis, delusions, schizoaffective disorders, paranoia and anxiety (including PTSD) that was documented by his psychiatrists from November 1981 to the present and submitted as part of his claim. However, as noted above, it the date of claim that controls, not the date the medical evidence shows the first indication of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of . . . medical evidence does not establish an intent on the part of the veteran to seek . . . service connection for [a] condition."). The RO did consider the medical evidence attesting to the fact that the Veteran has been disabled since 1981. However, meeting the elements for service connection, whether it be under 38 C.F.R. § 3.303 or § 3.309, does not establish the effective date for compensation purposes. As noted above, the law governing effective dates is clear: the effective date is the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (emphasis added). Here, the Veteran has submitted evidence indicating his disability was present in 1981, contemporaneous with his service discharge. However, the Veteran does not dispute that the original claim for service connection was filed in June 2011 as to his psychiatric disability. There has been no argument that a claim for compensation was filed prior to June 2011. As a claim for compensation benefits was not filed within one year following the Veteran's discharge from service, the effective date of the award of service connection can be no earlier than the date of receipt of the claim; in this case, June 3, 2011 for the psychiatric claim, and August 29, 2011 for tardive dyskinesia. For the foregoing reasons, the claim for entitlement to an effective date earlier than June 3, 2011 for the grant of service connection for schizoaffective disorder bipolar type with PTSD is denied. Additionally, an effective date of August 29, 2011 for the grant of service connection for tardive dyskinesia is granted, but an effective date prior to that date is denied. ORDER An effective date earlier than June 3, 2011 for the grant of service connection for schizoaffective disorder bipolar type with PTSD is denied. An effective date of August 29, 2011, but no earlier, for the grant of service connection for tardive dyskinesia is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs