Citation Nr: 1740641 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 12-10 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an effective date earlier than June 27, 1980 for the grant of service connection for schizophrenia, paranoid type. 2. Whether there was a clear and unmistakable error (CUE) in an April 1975 rating decision denying entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified before the undersigned Veterans Law Judge in May 2015. A transcript of the hearing is of record. When the case was most recently before the Board in August 2015 the Board denied the claim of entitlement to an earlier effective date for the grant of service connection for schizophrenia, paranoid type, denied the claim of entitlement to a rating in excess of 100 percent for schizophrenia, paranoid type, and referred the claim of whether there was CUE in the April 1975 rating decision to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Veteran appealed the August 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 Memorandum Decision the Court set aside the Board's denial of an effective date earlier than June 27, 1980 for the grant of service connection for schizophrenia, paranoid type, and remanded the issue for further proceedings consistent with the Memorandum Decision. The Court also modified the Board's disposition of the claim for CUE in the April 1975 decision (insofar as the Board referred the claim). As discussed further below, the Court determined that the claim should be remanded for issuance of a statement of the case. Finally, the Court modified the Board's decision to dismiss the claim of entitlement to a rating in excess of 100 percent for schizophrenia (on the basis of the Veteran withdrawing the claim). In this regard, the Court modified the decision to include the discussion in the Memorandum Decision regarding the Veteran's claim. Importantly, the Court found that the Veteran was never asserting a claim of entitlement to a rating in excess of 100 percent for schizophrenia. Rather, the Veteran was claiming that the benefit payments beginning in 1980 should not be paid in current inflated dollars and should instead be adjusted to reflect their original purchasing power. The Court discussed the pertinent law and determined that it has no authority to order the inflationary adjustments sought by the Veteran; that power rests with the Congress. The issue of whether there was CUE in an April 1975 rating decision that denied nonservice-connected pension is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's June 1974 claim of entitlement to nonservice-connected pension benefits (VA Form 21-526) was denied in an April 1975 rating action. 2. The Veteran did not appeal the April 1975 rating action denying nonservice-connected pension benefits. 3. The April 1975 correspondence notifying the Veteran of the denial of nonservice-connected pension benefits did not notify the Veteran that a compensation claim/claim of entitlement to service connection for a neuropsychiatric disability had been denied. 3. On June 13, 1974 the Veteran filed a VA Form 10-7131, which, in giving the Veteran the benefit of doubt, is construed as a claim of entitlement to service connection for a neuropsychiatric disability. 4. The record does not reflect that the April 1975 VA Form 21-523, "Disallowance Disability or Death Claim" (which essentially indicates that the Veteran's compensation claim was denied) was mailed to the Veteran, and the record does not otherwise reflect that the Veteran was notified that his June 13, 1974 compensation claim had been adjudicated. 5. The Veteran's June 13, 1974 claim of entitlement to service connection for a neuropsychiatric disability remained pending and was not adjudicated until after the Veteran filed another claim of entitlement to service connection on June 27, 1980, a claim that was ultimately granted in an April 2009 rating decision (a rating decision which served to implement the Board's September 2007 decision to grant service connection for schizophrenia). CONCLUSION OF LAW The criteria for an effective date of June 13, 1974, but no earlier, for the grant of service connection for schizophrenia, paranoid type, are met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an earlier effective date for the grant of service connection for schizophrenia, paranoid type. This is complex case in that the Board is being asked to determine events that occurred about 40 years ago. The laws and regulations governing effective dates establish that 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. § 5110 (a). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). The Veteran filed an application for compensation or pension (VA Form 21-526) for severe neuropsychiatric disorder, schizoid reaction, in June 1974. In an April 1975 notice letter to the Veteran, the RO clearly denied nonservice-connected pension. The letter also clearly provided appellate rights with respect to the pension claim. The Veteran did not initiate an appeal of the denial of pension benefits within one year of the April 1975 notification of the rating action. Therefore, the April 1975 rating action denying pension benefits became final. See 338 U.S.C.A. § 7105. Importantly, however, also in June 1974, the Veteran filed a VA Form 10-7131 (an admission notice to a VA hospital, received by VA on June 13, 1974), on which the Veteran marked a box entitled "service connection." The Veteran contends that this is a claim of entitlement to service connection for a neuropsychiatric disorder, schizoid reaction, and it was submitted along with his June 1974 claim of entitlement to nonservice-connected pension. In the Memorandum Decision, the Court noted that the Secretary did not dispute this contention and the Court found that this form was a compensation claim submitted as part of the 1974 application for benefits. In addition to the April 1975 notice letter clearly denying the pension claim, the record also contains an April 1975 VA Form 21-523, "Disallowance Disability or Death Claim," which essentially indicates that the Veteran's compensation claim was denied. However, as pointed out in the Memorandum Decision, there is no evidence whatsoever that this form was mailed to the Veteran. Again, it is very challenging to determine events that occurred at the VA 40 years ago. It appears clear that the burden has been put on VA to determine what did, or did not, happen in 1974 and 1975. The procedures of the VA are very different now. In any event, the findings of the Court cannot be unheeded. After reviewing the record, the Board agrees that there is no basis on which to clearly conclude that the April 1975 VA Form 21-523 was mailed to the Veteran. The Board also concludes that the April 1975 notice letter did not notify the Veteran that his compensation claim had been denied. In sum, there is no evidence that the Veteran received any notice whatsoever indicating that his June 13, 1974 compensation claim had been adjudicated. Consequently, the Veteran's June 13, 1974 claim has essentially been pending since it was filed, as he never received evidence of its adjudication. The Veteran filed another claim for service connection for a nervous condition on June 27, 1980. This claim was ultimately granted by the Board in a September 2007 decision. The RO implemented this decision in an April 2009 rating decision, granting service connection for schizophrenia, paranoid type, effective June 27, 1980. Under the controlling law and regulations outlined above, the award of compensation may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is later. Based upon the above discussion, the Board finds that June 13, 1974 is the appropriate date of claim because, in giving the Veteran the benefit of the doubt, this is the date his original claim for service connection was filed, and such claim remained pending at the time he filed the June 27, 1980 claim for service connection for schizophrenia. As such, the Board finds that June 13, 1974 is the appropriate effective date. In this regard, even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. Accordingly, the claim is granted, and June 13, 1974 is the appropriate effective date. See 38 C.F.R. § 3.400 (q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). ORDER Entitlement to an effective date of June 13, 1974, but no earlier, for the grant of service connection for schizophrenia, paranoid type, is granted, subject to the criteria governing the payment of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that in a March 2012 rating decision, the RO denied the Veteran's claim regarding whether there was CUE in an April 1975 rating decision denying nonservice-connected pension. Pursuant to the Memorandum Decision, a July 2012 statement submitted by the Veteran should be construed as a timely notice of disagreement with respect to this denial. As such, the record reflects that to date, the RO has not issued a statement of the case regarding the CUE issue. Accordingly, a remand is required for the issuance of a statement of the case on the issue of whether there is CUE in an April 1975 rating decision. See Manlincon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of whether there is CUE in an April 1975 rating decision denying nonservice-connected pension. The Veteran should be apprised of his right to submit a substantive appeal and to have his claim reviewed by the Board. The Veteran should be allowed the requisite period of time for a response. If, and only if, the Veteran files a substantive appeal the issue should be returned to the Board for appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters 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). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs