Citation Nr: 18155929 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-41 700 DATE: December 6, 2018 ORDER Entitlement to an effective date earlier than March 6, 2015 for the award of service connection for other specified schizophrenia spectrum and other psychotic disorder is denied. FINDINGS OF FACT 1. A claim of service connection for psychiatric disability was denied in a May 1985 Board decision on the basis that the claimed disability did not have its onset in service, did not manifest within one year of the Veteran’s separation from service, and was not otherwise incurred in or caused by service. 2. An application to reopen the claim of service connection for psychiatric disability was granted in a July 1996 Board decision; the claim of service connection for psychiatric disability was thereafter adjudicated on a de novo basis and denied in a February 1998 Board decision on the basis that the claimed disability did not have its onset in service, did not manifest within one year of the Veteran’s separation from service, and was not otherwise incurred in or caused by service. 3. An application to reopen the claim of service connection for psychiatric disability was denied in a December 2000 Board decision on the basis that new and material evidence had not been submitted. 4. An application to reopen the claim of service connection for psychiatric disability was denied in a May 2003 rating decision on the basis that new and material evidence had not been submitted; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 5. A claim of service connection for posttraumatic stress disorder (PTSD) was adjudicated on a de novo basis and denied in an August 2006 rating decision on the basis that there was no evidence of any such disability related to a verified stressor in service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 6. A claim of service connection for bipolar/manic depression was adjudicated on a de novo basis and denied in an October 2007 rating decision on the basis that the claimed disability was not incurred in or caused by service; the Veteran submitted a timely notice of disagreement (NOD) in October 2008 and a statement of the case (SOC) was issued in December 2008, but the Veteran did not file a substantive appeal. 7. An application to reopen the claim of service connection for psychiatric disability was received on March 6, 2015; there is no evidence of any unadjudicated formal or informal application to reopen the claim of service connection for psychiatric disability subsequent to the October 2007 rating decision, but prior to March 6, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than March 6, 2015 for the award of service connection for other specified schizophrenia spectrum and other psychotic disorder are not met. 38 U.S.C. §§ 5110 (a), 7104(b), 7105; 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156(a)-(b), 3.400, 19.31, 20.200, 20.302, 20.1100(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to February 1977 and from September 1978 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision. The Veteran requested a hearing before a Decision Review Officer (DRO) on his August 2016 substantive appeal (VA Form 9). An informal hearing conference with a DRO was conducted in May 2018 in lieu of a formal hearing and a report of that conference has been associated with the Veteran’s claims file. Entitlement to an effective date earlier than March 6, 2015 for the award of service connection for other specified schizophrenia spectrum and other psychotic disorder Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under 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 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The Veteran contends than an effective date earlier than March 6, 2015 is warranted for the award of service connection for other specified schizophrenia spectrum and other psychotic disorder. The Board finds, for the following reasons, that no earlier effective date is warranted. The current effective date for the award of service connection for other specified schizophrenia spectrum and other psychotic disorder is March 6, 2015, the date that the Veteran’s most recent application to reopen the claim of service connection for psychiatric disability was received. The Veteran’s initial claim of service connection for psychiatric disability was denied in May 1985 Board decision on the basis that the claimed disability did not have its onset in service, did not manifest within one year of the Veteran’s separation from service, and was not otherwise incurred in or caused by service. Specifically, the Board explained that although the Veteran was evaluated in service for suicidal ideation and personal problems in adjusting to the military, no significant mental illness was diagnosed. There was no psychiatric abnormality noted at the time of his separation examination and the first evidence of any psychosis was not until he was diagnosed as having paranoid schizophrenia in 1982 (more than 3 years after his separation from service). The Board’s decision was final when issued. See 38 U.S.C. § 7104 (b); 38 C.F.R § 20.1100 (a) (a Board decision is final on the date stamped on the face of the decision). In a July 1996 decision, the Board granted an application to reopen the claim of service connection for psychiatric disability and remanded the underlying claim to the agency of original jurisdiction (AOJ) for further development. The Board thereafter adjudicated the claim of service connection for psychiatric disability on a de novo basis and denied the claim in a February 1998 decision on the basis that the claimed disability did not have its onset in service, did not manifest within one year of the Veteran’s separation from service, and was not otherwise incurred in or caused by service. The Board explained that the Veteran was not diagnosed as having any chronic acquired psychiatric disability in service, that symptoms which he experienced in January 1980 were attributed to substance abuse and variants of personality disorders, and that his claimed psychiatric disability was not otherwise etiologically related to service. The Board’s decision was final when issued. See Id. Applications to reopen the claim of service connection for psychiatric disability were denied in a December 2000 Board decision and a May 2003 rating decision on the basis that new and material evidence had not been submitted. The Board’s December 2000 decision was final when issued. See Id. As for the AOJ’s May 2003 decision, the Veteran was notified of the decision, but he did not appeal the decision within one year of its issuance and new and material evidence was not received within that year. Therefore, the May 2003 decision also became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. A claim of service connection for PTSD was adjudicated on a de novo basis and denied in an August 2006 rating decision on the basis that there was no evidence of any such disability related to a verified stressor in service. Specifically, the AOJ explained that the Veteran’s service records did not show evidence corroborating his claimed stressor and that there was no medical evidence of any diagnosed PTSD related to an in-service stressor. The Veteran was notified of the AOJ’s August 2006 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the August 2006 decision became final. See Id. A claim of service connection for bipolar/manic depression was adjudicated on a de novo basis and denied in an October 2007 rating decision on the basis that the claimed disability was not incurred in or caused by service. The AOJ explained that there was no evidence in the Veteran’s service treatment records that he was diagnosed as having any significant mental illness and that his claimed post-service psychiatric disability was not related to any disease or injury in service. The Veteran submitted a timely NOD with the October 2007 decision in October 2008 and an SOC was issued in December 2008. Appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to an appellant. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105 (b)(2); 38 C.F.R. § 20.302 (b). In the absence of a properly perfected appeal, the AOJ may close the appeal and the decision becomes final. 38 U.S.C. § 7105 (d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The AOJ did so in this case, as evidenced by the fact that it did not certify to the Board the issue of entitlement to service connection for psychiatric disability following the December 2008 SOC. An internal memorandum from a DRO dated in September 2009 also confirms that the Veteran’s appeal was closed because no timely substantive appeal was received following the December 2008 SOC. As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim of service connection for psychiatric disability following the December 2008 SOC, the AOJ closed the appeal. The AOJ did not certify the psychiatric issue to the Board at that time and no further action was taken by VA to suggest that the issue was on appeal. Thus, the October 2007 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran submitted an application to reopen the claim of service connection for psychiatric disability in March 2015. This application was received by the AOJ on March 6, 2015. The AOJ subsequently awarded service connection for other specified schizophrenia spectrum and other psychotic disorder by way of the May 2015 rating decision, from which the current appeal originates. The Veteran appears to contend that the effective date of service connection for his psychiatric disability should be the date that his initial claim was submitted in March 1983 because records of treatment for psychiatric problems in service at Madigan Army Medical Center were not initially obtained and considered by VA. The Board points out, however, that these records are included among his service treatment records and that these records were in his claims file and considered/discussed by the Board in its initial May 1985 decision and the other subsequent AOJ and Board decisions. The Board also acknowledges that the claims file includes an April 1991 letter from an attorney which was submitted to the AOJ. In this letter, the attorney requested revision of the Board’s May 1985 decision on the basis of clear and unmistakable error (CUE). A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party’s representative. The motion must include the name of the Veteran; the name of the moving party, if other than the Veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board’s decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. The motion must also set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart. 38 C.F.R. § 20.1404 (a), (b). Initially, the Board points out that the attorney who submitted the April 1991 letter was not the Veteran’s appointed representative and that the letter was not otherwise signed by the Veteran or his appointed representative. Aside from this fact, the April 1991 letter alone does not meet the criteria set forth above with respect to motions alleging CUE in a Board decision and the Veteran has not otherwise submitted any written motion for revision of a Board decision on the basis of CUE. Thus, he has not submitted a sufficient motion for revision of any Board decision on the basis CUE and no further consideration can be given to this matter. Also, he has not alleged CUE in any prior final AOJ decision. This decision, however, does not preclude him from properly alleging CUE in a prior AOJ or Board decision. Neither the Veteran, nor his representative, has presented any other specific argument as to why an effective date earlier than March 6, 2015 is warranted for the award of service connection for the Veteran’s other specified schizophrenia spectrum and other psychotic disorder. There is no evidence of any unadjudicated formal application to reopen the claim of service connection for psychiatric disability subsequent to the October 2007 rating decision and prior to March 6, 2015, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Thus, March 6, 2015 is the earliest possible effective date because that is the date of the application to reopen following the most recent prior final denial. 38 C.F.R. § 3.400(q)(2); (r). See also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005) (“[A]bsent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date”). (Continued on the next page)   For the foregoing reasons, the Board finds that there is no basis upon which to justify granting an effective date earlier than March 6, 2015 and the appeal for an earlier effective date for the award of service connection for other specified schizophrenia spectrum and other psychotic disorder must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel