Citation Nr: 18147904 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-45 525 DATE: November 6, 2018 ORDER Entitlement to an effective date prior to June 17, 2008 for the grant of service connection for major depressive disorder, recurrent mild with unspecified schizophrenia spectrum and other psychotic disorder (schizophrenia), is denied. FINDINGS OF FACT 1. A July 2004 rating decision denied service connection for schizophrenia. The Veteran was notified of the decision in correspondence issued that same month. The Veteran did not appeal the decision and new and material evidence was not submitted within a year after the decision. Therefore, the decision is final. 2. After the July 2004 rating decision became final, VA first received a claim of service connection for any psychological disorder on June 17, 2008. While the Veteran had an ongoing appeal for entitlement to service connection for posttraumatic disorder (PTSD), it explicitly did not encompass any other psychological disorder and the matter was denied by the Board of Veterans’ Appeals (Board) in a July 2007 decision that was final. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to June 17, 2008 for the grant of service connection for schizophrenia have not been met. 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 The Veteran served on active duty from October 1974 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA). Entitlement to an effective date prior to June 17, 2008 for the grant of service connection for schizophrenia. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claim is 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) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). At any time after VA issues a decision on a claim, if VA receives or associates with the claim file relevant official service department records that existed and had not been associated with the claim file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). An award made based all or in part on such service department records is effective the date entitlement arose or the date VA received the previously decided claim, whichever is later. Id. The Veteran stated that he should be assigned an effective date of July 5, 1979, the date he first filed a claim for disability compensation benefits related to a psychological disorder. He stated that VA indicated it could not locate any evidence of mental disorder in his service treatment records (STRs) until he presented VA with a copy of his STRs showing multiple psychological disorders. He reported that VA was not able to find his STRs in 1979. He further stated that he was granted non-service-connected pension benefits for the same psychological disorders in 2002. See September 2016 substantive appeal. The Veteran filed a claim for disability benefits related to a nervous disorder in July 1979. See July 1979 VA Form 21-526, Veteran’s Application for Compensation. The record reflects the Veteran’s STRs were requested and received in July 1979. See July 1979 VA Form 07-3101, Request for Information. After the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection, see September 1979 rating decision, he appealed that decision. Eventually, the Board denied entitlement to service connection for a nervous disorder, referencing his STRs, in-service diagnosis of an inherent personality disorder, and post-service diagnosis of latent schizophrenia. See June 1981 Board decision. The Board decision is final. In May 2002, the Veteran filed a claim for “NSC [non-service-connected] pension.” See May 2002 statement. The AOJ granted entitlement to pension based on the Veteran’s schizoaffective disorder. See August 2002 rating decision. The Veteran filed a claim for entitlement to service connection for schizophrenia in August 2003. See August 2003 correspondence. The AOJ denied the claim, see July 2004 rating decision, and the Veteran was notified of that decision in correspondence issued that same month. He did not appeal the decision and no additional evidence was received within one year of the decision. Thus, the July 2004 rating decision became final. From the time the July 2004 rating decision became final until June 17, 2008, the Veteran did not submit any correspondence indicating an intent or which can be construed as an intent to file a claim for benefits for any psychological disorder. During this time the Veteran had an ongoing appeal for entitlement to service connection for PTSD that was eventually denied, but entitlement to service connection for schizophrenia or any other psychological disorder was explicitly not made part of the appeal. See July 2007 Board decision. Correspondence received in April 2008 references a claim for aid and attendance, and does not specifically discuss any psychological disorder. See April 2008 statement. On June 17, 2008, VA received a claim for entitlement to service connection for a nervous disorder, a psychotic disorder, paranoid reaction, as well as for major depression and schizophrenic reaction. See June 2008 statement. The Board notes that 38 C.F.R. § 3.156(c) is not applicable in this case. The record reflects that the Veteran’s complete STRs were of record at the time of the June 1981 Board decision and July 2004 rating decision. Indeed, there is no record of an inability to obtain the Veteran’s STRs. The Veteran did not identify which STRs he submitted upon which service connection was granted. He submitted an STR in April 2004, but it was already of record, and the copies the Veteran submitted literally “copied from claims folder Department of Veterans Affairs,” indicating that VA already had that document. See April 2004 correspondence. Thus, because there were no new STRs submitted by the Veteran that were not already of record at the time of any decision, 38 C.F.R. § 3.156(c) is inapplicable. To establish an effective date earlier than June 17, 2008 for the grant of service connection for schizophrenia, the Veteran would need to show both (1) that such disability first manifested prior to June 17, 2008 and (2) that he had a prior claim of service connection for a psychological disorder that remained pending, such that an earlier date of claim would be preserved. See 38 C.F.R. § 3.400. Because the July 2004 rating decision became final, an effective date prior to that claim cannot be assigned. As a result, the Veteran’s May 2002 claim for non-service-connected pension—even if it did reference an intent to apply for service-connected benefits related to a psychological disorder, which it did not—cannot be the basis for an earlier effective date as it would be considered to be subsumed into the July 2004 denial. After the July 2004 rating decision became final, the evidence simply does not reflect that the Veteran filed another claim for entitlement to service connection for any psychological disorder until June 17, 2008. His April 2008 correspondence only references aid and attendance, thus it does not sufficiently identify any intent to apply for benefits related to a psychological disorder. The Veteran’s ongoing appeal for entitlement to service connection for PTSD explicitly did not encompass any other psychological disorder, and even if it did, the claim was denied by the Board in a final July 2007 decision. Consequently, regardless of when the Veteran’s schizophrenia first manifested, there is simply no basis for awarding an effective date prior to June 17, 2008 for the grant of service connection for schizophrenia, and the issue must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel