Citation Nr: 1753322 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-02 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date earlier than December 5, 2003, for the grant of entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), to include schizophrenia, paranoid type with depression. 2. Entitlement to an effective date earlier than December 5, 2003, for Dependents' Educational Assistance (DEA). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to January 1982, followed by a period of reserve service. This matter comes before the Board of Veterans' Appeal (Board) on an appeal from a May 2011 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which assigned an initial 100 percent rating for schizophrenia, paranoid type with depression, effective December 5, 2003. Jurisdiction over the present matter has since been transferred to the RO in Roanoke, Virginia. In August 2017, the Veteran, through her representative, filed a motion to advance her appeal on docket. The issuance of this decision renders that motion moot. FINDINGS OF FACT 1. The RO denied service connection for a mental illness in unappealed June 2000 and September 2001 rating decisions. The Veteran was notified of the denial and of her appellate rights in a September 2001 letter. The Veteran did not appeal this decision within the one year appeal period, nor was there a receipt of unaddressed relevant evidence within the appeal period. 2. Service department records relevant to the claimed mental illness from the Naval Hospital, Great Lakes, dated October 1997 to February 2000, were added to the claims file on January 20, 2005. 4. A March 2011 Board decision granted service connection for schizophrenia and the grant was based in part on the Naval Hospital, Great Lakes, records added to the claims file on January 20, 2005. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 28, 2000, but no earlier, for the grant of service connection for psychiatric disorder other than PTSD, to include schizophrenia, paranoid type with depression, have all been met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2017) . 2. The criteria for an effective date of March 28, 2000, but no earlier, for DEA have all been met. 38 U.S.C. §§ 3501, 3510, 3512 (2012); 38 C.F.R. §§ 3.807(a), 21.3021 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Earlier Effective Date for Service Connection for Schizophrenia The representative contends the Veteran is entitled to an earlier effective date for service connection for schizophrenia under two theories. First, the representative asserts that service records were added to the claims file subsequent to a prior denial for a claim for service connection for mental illness and that since the grant of service connection was based in part on these records, the effective date should be earlier than that assigned. Second, the representative asserts that the Veteran's September 1993 claim of entitlement to service connection for headaches and fluid in the head should be construed as a claim of entitlement to service connection for a psychiatric disorder. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen 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(a); 38 C.F.R. § 3.400(q)(2), (r). In the present case, VA first received a claim of entitlement to service connection for a mental illness on March 28, 2000, and denied it in a September 2001 rating decision. The Veteran did not file a notice of disagreement with the September 2001 rating decision within the one year appeal period following notification of the decision nor was there relevant evidence received within one year of the appeal period. The Veteran filed a request to reopen the claim for service connection for mental illness in December 2003. The March 2011 Board decision subsequently granted entitlement to service connection for schizophrenia, paranoid type, with depression. A May 2011 rating decision implemented that grant and assigned a 100 percent disability rating, effective December 5, 2003. The representative asserts the Veteran is entitled to an earlier effective date because service records were added to the file subsequent to the September 2001 denial. Title 38 section 3.156 of the C.F.R. addresses what VA must do if new and material evidence is received following the issuance of a decision on a claim. In general, if a decision has not been appealed, VA must go through a process of determining if the claim may be reopened, and if it is reopened and granted, the effective date of the award can generally be no earlier than the date of the request to reopen. See 38 C.F.R. §§ 3.156 (a), 3.400 (2017). However, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the subsection addressing reopening claims. 38 C.F.R. § 3.156(c)(3). Service department records that are relevant to the claimed in-service event, injury, or disease, are such § 3.156(c) records. However, in order to qualify as such records, the award of benefits must be based at least in part on the records. Additionally, this does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Significantly, if the claim is granted based on such service department records, the award is to be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Prior to the September 2001 rating decision, VA had been unable to obtain treating records from the Naval Hospital, Great Lakes. This is evidenced by a June 2001 reply from the Naval Hospital indicating that it found no records of the Veteran. It is clear however, that the Veteran provided sufficient information for VA to identify and obtain the records and it is clear that the records existed at that time. In January 2005, records from the Naval Hospital, dated October 1997 through February 2000, were added to the claims file. These records detailed the Veteran's mental health treatment for paranoid schizophrenia. As such, these records satisfy the criteria of 38 C.F.R. § 3.156(c). Therefore, the Veteran is entitled to an effective date of March 28, 2000, the date the VA received the previously-denied claim. The Board recognizes that in a January 2010 decision, the Board reopened the claim of entitlement to service connection for a psychiatric disorder based on receipt of new and material evidence. Upon reflection, this was in error because new and material evidence received following the 2001 denial included service department records, reopening was not required, rather, the proper course was to reconsider the claim submitted in the year 2000. The representative also asserts that the Veteran is entitled to an earlier effective date for service connection for schizophrenia based on a claim the Veteran filed in September 1993 for headaches and fluid in the head. The representative asserts that headaches and fluid in the head are symptoms of schizophrenia, and therefore the September 1993 claim should be viewed as a claim encompassing schizophrenia. The Court has held that "[t]he law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically." DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). In determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board cannot reflexively conclude that the appearance of a new diagnosis is always evidence amounting to a new claim, but must consider whether a new claim is based upon a diagnosed disease or injury that is distinct from a claim previously considered. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). The Board finds the September 1993 claim for headaches and fluid in the head does not encompass a claim for a mental illness, to include schizophrenia, as the evidence of record does not support that the claim for headaches and fluid in the head could reasonably interpreted as a claim for schizophrenia. In the September 1993 claim, the Veteran filed for service connection for headaches and fluid in the head and identified that they began in 1989. The Veteran did not assert any psychological symptoms. The Veteran's October and November 1991 Naval Hospital records indicate "bogginess" of the scalp, swelling and tenderness of the scalp, and constant headaches. The Veteran was referred to neurology and dermatology for her symptoms. A February 1992 treating note indicates extracranial preoccipital fluid accumulation and notes that dermatology suspected lymphedema. The Veteran's November 1991and October 1992 CT scans were normal. August and September 1992 Naval Hospital records assessed lymphedema of the scalp. May 1993 Naval Hospital records indicated complaints of fluid in the head and puffiness of the right side of the scalp, which the Veteran states were causing headaches. The physician indicated a possible hormonal imbalance, recommended a low salt diet, and prescribed Midrin for her headaches. The Veteran's claim for service connection was denied in a May 1994 rating decision, which stated that there was no evidence the claimed conditions were related to military service. The Veteran did not file a NOD, and the rating decision became final. In March 2000, the Veteran filed her claim for mental illness, which was denied in September 2001. The Veteran did not file a NOD, nor was any unaddressed evidenced received within a year of the rating decision. A December 2003 request to reopen the claim was granted, and a March 2011 Board decision granted service connection for schizophrenia with an effective date of December 5, 2003. The Board decision stated that the Veteran has consistently been treated for a psychiatric disorder since December 1994, and has been consistently diagnosed with schizophrenia since February 1996, but non-medical evidence of record indicates the Veteran was exhibiting unusual behavior during military service. As identified by the December 2006 Naval Hospital physician opinion, these symptoms included, in part, agitation, anxiety, confusion, and disorganized thinking and behavior. The physician did not identify headaches, fluid in the head, or lymphedema as possible symptoms of a psychiatric disorder. A January 2011 private physician evaluation, which was accorded high probative value in the March 2011 Board decision, states that it was more likely than not that the Veteran was exhibiting symptoms consistent with a diagnosis of paranoid schizophrenia or prodromal signs of schizophrenia during active service. The physician identified her in-service symptoms as dizziness, light headedness, running into doors, and equilibrium problems. However, the physician did not identify headaches, fluid in the head, or lymphedema as possible symptoms of schizophrenia. As the Veteran's treating physicians did not identify the symptoms associated with the September 1993 claim for headaches and fluid in the head as possible symptoms of a psychiatric disorder, the Board finds that the September 1993 claim and the March 2000 claim are claims for distinct conditions. The March 2000 claim is not viewed as a claim to reopen the September 1993 denial, but rather a distinct claim for different symptoms. Therefore, the Veteran is not entitled to an earlier effective date for service connection for a psychiatric disorder other than PTSD based on the September 1993 claim. Accordingly, the Board concludes that the preponderance of the evidence indicates the Veteran is entitled to an effective date of March 28, 2000, but not earlier, for the grant of service connection for a psychiatric disorder other than PTSD. II. Earlier Effective Date for Dependents' Educational Assistance For the purposes of educational assistance under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3021. In this case, the Veteran is entitled to an effective date of March 28, 2000, for the award of DEA benefits. As found above, the Veteran is entitled to an earlier effective date of March 28, 2000, for the grant of service connection for a psychiatric disorder other than PTSD. The Veteran has not been otherwise assigned a permanent total disability rating on any other basis. DEA benefits may not be awarded prior to the effective date of an award for a permanent and total disability rating. 38 U.S.C. §§ 3501, 3510. Consequently, the Veteran is not entitled to an effective date earlier than March 28, 2000, for DEA benefits. (CONTINUED ON NEXT PAGE) ORDER An effective date of March 28, 2000, for the grant of service connection for a psychiatric disorder other than PTSD, to include schizophrenia, paranoid type with depression, is granted. An effective date of March 28, 2000, for DEA is granted. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs