Citation Nr: 1805076 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 07-27 732A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date prior to August 23, 2005 for service connection for schizophrenia. REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active service from March 1975 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In an April 2015 decision, the Board denied an effective date prior to August 23, 2005, for the grant of service connection for schizophrenia. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated March 2016, the Court vacated the Board's April 2015 denial and remanded the matter to the Board for compliance with the instructions included in the March 2016 Joint Motion for Remand (JMR) by the parties. In an August 2016 decision, the Board again denied an effective date prior to August 23, 2005, for the grant of service connection for schizophrenia. The Veteran appealed the denial to the Court, which vacated the denial in an August 2017 Order, and remanded the matter to the Board for compliance with the August 2017 Amended JMR. FINDINGS OF FACT 1. The address used to mail the Veteran's March 31, 2005 statement of the case was the same address listed in a January 4, 2005 Social Security Administration inquiry. 2. There is no indication a January 27, 2005 letter of appellate rights or the March 31, 2005 statement of the case, both sent to the address listed on the Social Security Administration inquiry, were undeliverable. 3. The Veteran submitted signed documents that listed his address as the same one used to mail the March 31, 2005 statement of the case; the Board does not find his statements that he never lived there credible. 4. Correspondence from the claims file indicates the address used to mail the March 31, 2005 statement of the case was the Veteran's correct address for at least eight months following the Social Security Administration inquiry. 5. The first communication from the Veteran to VA that could be interpreted as an intent to file a claim of service connection for schizophrenia following the final December 2003 rating decision was received on August 23, 2005. CONCLUSION OF LAW An effective date prior to August 23, 2005, is not warranted for the award of service connection for schizophrenia. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the March 2011 rating decision on appeal granted service connection for schizophrenia and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and additional notice is not required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An August 2014 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an earlier effective date for the award and readjudicated the matter. 38 U.S.C. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated in this decision. The Board is satisfied that evidentiary development is complete and that VA's duties to notify and assist are met. The Veteran is not prejudiced by the Board deciding this claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Legal Criteria, Factual Background, and Analysis Except as otherwise provided, the effective date of an award of 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. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Indeed, to reiterate from the prior August 2016 Board decision, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Even if not specifically listed by document, the Board has considered the contents of the record and has considered the Veteran's and his attorney-representative's contentions contained therein. Here, the Veteran contends that the effective date for his grant of service connection for schizophrenia should be June 2003, the date of his initial claim. The claim was received by VA on July 7, 2003, and was denied in a December 16, 2003 rating decision. The Veteran submitted a notice of disagreement, received on January 7, 2004. A March 31, 2005 statement of the case was mailed to the Veteran; however, he contends he never received it because the RO sent it to the wrong mailing address. The Court has specifically directed the Board to re-address this contention.. The Veteran's July 2003 claim included an address, henceforth called his "original address." This was also the address used to send the August 2003 duty to assist letter and the December 2003 rating decision, which he clearly received since he responded with a notice of disagreement, also listing the original address. He has not disputed receipt of any of these correspondences. Internal correspondence from the Veteran's then representative, dated December 22, 2004, also used this original address. On January 4, 2005, a Social Security Administration (SSA) inquiry was performed, which listed a different address for the Veteran, hereinafter referred to as the "new address." A January 26, 2005 request for SSA records was submitted listing the Veteran's old address. A letter to the Veteran regarding his appellate rights was sent January 27, 2005 to the new address, as was the March 31, 2005 statement of the case in question. There is no indication these last two correspondences were returned or undeliverable. Subsequent correspondence, including an August 2005 Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22), August 2005 pension claim, and September 2005 letter granting pension benefits used the Veteran's new address. These documents included the Veteran's signature. Here, the Veteran contends he never received the March 31, 2005 statement of the case, as it was sent to the "incorrect" address. See March 2016 JMR. In this regard, the presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to the Veterans Service Center Manager and to other officials at the RO who were responsible for notifying the Veteran of the issuance of the statement of the case. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). Significantly, the Veteran may rebut the above presumption by submitting clear evidence to the effect that VA's regular mailing practices were not followed in his case. In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). An "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98, 102 (1998). Conversely, clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curiam order); see also Crain, 17 Vet. App. at 188-89. If the Veteran succeeds in rebutting the presumption of regularity, the burden then shifts to VA to establish that regular administrative practices were, in fact, observed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (the presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary); see also Baxter v. Principi, 17 Vet. App. 407, 410 (2004). The Board finds that as there is no clear evidence to the effect that VA's regular mailing practices were not followed in the instant case, the presumption of regularity has not been rebutted. Jones, supra; Crain, supra. Specifically, as stated in the prior Board August 2016 decision, because this new address was the one listed on the January 4, 2005 SSA inquiry, it appears the Veteran's SSA payments were being sent to this address. While the Veteran never directly notified VA that his address had changed, it is reasonable to infer that he did notify SSA of the correct address in order to receive his payments. It is also worth noting that this new address was used by the Veteran in correspondence with VA for at least eight months following the SSA inquiry. To reiterate from the prior August 2016 Board decision, under the common law mailbox rule, if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007). Here, there is no indication that mail sent to this new address, to include the statement of the case, was undelivered or returned to sender. It can be presumed that the statement of the case, sent to the Veteran's new address, reached its destination and was received by the Veteran. The Board acknowledges the Veteran's statement that he did not reside at the new address, as he swore in a May 2014 affidavit, which the Court specifically asked the Board to consider. However, the Board finds the Veteran not credible as to this assertion. As previously noted, the Veteran submitted signed documents with this new address, including an August 2005 Appointment of Veterans Service Organization as Claimant's Representative form (VA Form 21-22) and an August 2005 Income-Net Worth and Employment Statement (VA Form 21-527). Therefore, his current contentions are countered by evidence at the time that is contrary to his statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). While the Board is sympathetic to the Veteran's reports of unstable living situations, there was no indication that the Veteran was not living at the new address, either in the form of undeliverable mail or by his listing a different address. At the time of the issuance of the SOC in question, VA did not have a basis to questioning that it not received. The presumption of regularity plays a role in government organizations such as VA being able to presume that documents are sent and received when mailed unless there is evidence to the contrary that would provide VA a reason to believe it was not then received. If such evidence was received at the time surrounding the issuance of the SOC, VA would have been on notice to consider whether the SOC was correctly mailed and received. In the months following the issuance of the SOC, such evidence did not come into the record, such as returned mail. As noted, the Veteran, in the time surrounding the issuance of this decision, used the "new address" in question. Considering all the evidence of record, to include the cited affidavit, the Board finds that VA properly discharged its duties regarding the mailing of the SOC. If something sent to the Veteran had been returned as undeliverable, VA would have had cause to look into it. VA has an interest in knowing mail sent to veterans has been delivered. However, as noted, there was no such indication in this case. While the Board acknowledges that the Veteran himself did not request that his address be changed, again, there is no evidence to suggest that the address used by SSA was incorrect; rather, the evidence supports that it was his correct address at the time. The Veteran used this address on other documents. Therefore, the Veteran's claim of entitlement to an effective date prior to August 23, 2005, for the grant of service connection for schizophrenia, based on non-receipt of the statement of the case, must be denied. Further, there is no other basis on which to grant an earlier effective date. As discussed in the Board's April 2015 decision, the Veteran did not perfect an appeal for the December 2003 rating decision, therefore it became final. The Board acknowledges that in limited circumstances, such as the presence of clear and unmistakable error, the finality of a VA adjudication may be attacked. See 38 C.F.R. § 3.105(e). In the present case, however, the Veteran has not alleged clear and unmistakable error or otherwise called into question the finality of the December 2003 rating decision; thus, an earlier effective date is precluded on that basis. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was no other communication prior to the August 23, 2005 claim for nonservice connected pension benefits which could be considered a new claim. The governing law and regulations are clear that for benefits to be paid or furnished by VA, a claim for such benefits must have been filed. See 38 U.S.C. § 5101(a). The Board is bound by the governing laws and regulations of the VA. Therefore, the Board finds that there is no basis for an earlier award for the award of service connection for schizophrenia. The Board is, again, sympathetic to the contentions made on appeal and is cognizant of the type of address used by the Veteran for a period of time to which the SOC was sent. As noted, however, the Board must also consider that this is an address used by the Veteran at the time in question and VA has a need to be able to use addresses as provided by other parts of the government when also listed by the Veteran in key documents, to include a contemporaneous VA 2-122. In light of the foregoing, the Board finds that an effective prior to August 23, 2005 for service connection for schizophrenia is not warranted, and that the appeal in this matter must be denied. ORDER An effective date prior to August 23, 2005 for service connection for schizophrenia is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs