Citation Nr: 20052564 Decision Date: 08/07/20 Archive Date: 08/07/20 DOCKET NO. 18-21 157 DATE: August 7, 2020 ORDER Entitlement to an earlier effective date than April 24, 2013, for a 50 percent rating for paranoid schizophrenia is denied. FINDINGS OF FACT 1. Following the issuance of the final November 1988 rating decision that continued a 30 percent rating for paranoid schizophrenia, VA received the Veteran’s claim for an increased rating for such disorder on April 24, 2013. 2. It is not factually ascertainable that the Veteran’s paranoid schizophrenia increased in severity within 1 year prior to receipt of his April 24, 2013, claim. CONCLUSION OF LAW The criteria for an earlier effective date than April 24, 2013, for a 50 percent rating for paranoid schizophrenia have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9201 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied the currently appealed claim. The Veteran and VA’s Office of General appealed the Board’s June 2019 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (JMR). The Court granted the JMR in May 2020 which vacated and remanded the Board’s June 2019 decision. The Board notes that a November 2018 rating decision granted an increased evaluation of 70 percent for the Veteran’s paranoid schizophrenia, effective September 6, 2018, and denied a total disability rating based on individual unemployability (TDIU). The Veteran disagreed with this decision later that same month. Although a statement of the case has not yet been issued on these claims, according to the Veterans Appeals Control and Locator System, they still are being developed by the Agency of Original Jurisdiction (AOJ). As a result, the Board declines jurisdiction over these issues until such time as an appeal is perfected. Subsequent to the issuance of the statement of the case in April 2018, additional evidence consisting of VA examination reports and updated treatment records was associated with the record. Because this evidence is irrelevant to the currently appealed claim, the Board may proceed to adjudicate it without prejudice to the Veteran. 38 C.F.R. § 20.1304(c). Entitlement to an earlier effective date than April 24, 2013, for a 50 percent rating for paranoid schizophrenia As reflected in an October 2015 rating decision, the AOJ granted an increased rating of 50 percent for service-connected paranoid schizophrenia effective May 12, 2015, the date that VA Medical Center (VAMC) treatment records noted ongoing symptoms of auditory hallucinations and social isolation. In a January 2016 notice of disagreement, the Veteran appealed the effective date for a 50 percent rating and requested an effective date as of the date of his discharge from service. A Decision Review Officer (DRO) rating decision was issued in April 2018 which found that entitlement to an earlier effective date for the 50 percent rating was warranted from April 24, 2013, as evidenced by the Veteran’s written correspondence which indicated a worsening of his service-connected paranoid schizophrenia. Such findings were confirmed in an April 2018 rating decision issued by the AOJ. Here, the AOJ explained that the findings in the October 2015 rating decision was based upon a clear and unmistakable error because VA had not considered the Veteran’s worsening statements which were also in an August 2014 VA examination. As noted in the Introduction, in June 2019, the Board denied an earlier effective date than April 24, 2013, for a 50 percent rating for paranoid schizophrenia. Both parties to the JMR argued successfully to the Court that, in its June 2019 decision, the Board failed to consider whether a November 2012 Report of General Information or August 2012 written correspondence by the Veteran could be considered prior informal claims. Having reviewed the record evidence, the Board finds that preponderance of the evidence is against granting the claim for an earlier effective date than April 24, 2013, for a 50 percent rating for paranoid schizophrenia. The Board has reconsidered the facts of the case, including the concerns raised in the May 2020 JMR. A review of the record evidence shows that no formal or informal claim for an increased rating for the Veteran’s service-connected psychiatric disorder was received until his written correspondence indicating a worsening of his paranoid schizophrenia which was received on April 24, 2013. See 38 C.F.R. §§ 3.151, 3.155, 3.157; Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Here, in the August 2012 written correspondence, the Veteran requested the VA to begin his appeal process with respect to the denial of backpay. The record evidence also includes the Veteran’s report that so many different health issues that were now very poor “(Neck-etc.).” This statement did not identify a benefit sought or request an increased rating for his service-connected paranoid schizophrenia or indicate an intent to apply for such benefit. Thus, the Veteran’s statement cannot be construed as an informal increased rating claim for paranoid schizophrenia. VA found the August 2012 written correspondence to be unclear as to indicating an intent to apply for an increased rating and sought clarification from the Veteran as to his intention with such statement in November 2012. In a November 2012 Report of General Information, a VA representative informed the Veteran that, based on the evidence of record, there was no decision remaining that he could timely appeal and he was being contacted to ascertain what he wanted from VA. The VA representative further reported that he told the Veteran he could make a claim for increase and the Veteran understood this. Again, the record of this telephone call does not show that the Veteran requested an increased rating for his service-connected paranoid schizophrenia or indicate an intent to apply for such benefit. Between November 2013 and April 23, 2014, the Veteran did not identify or indicate an intent to apply for an increased rating for his psychiatric disability. Thus, the Board cannot construe either the August 2012 written correspondence or November 2012 Report of General Information as an increased rating claim. The remaining inquiry for the Board is whether it is factually ascertainable that the service-connected paranoid schizophrenia increased in severity so as to warrant a 50 percent rating within 1 prior to receipt of the April 24, 2013 claim. The evidence of record does not support finding a factually ascertainable basis for awarding an increased rating. In this regard, treatment records only reflect the Veteran’s requests for medication renewal. Although a review of these records suggests continued treatment of the service-connected paranoid schizophrenia, it is not factually ascertainable that this disability increased in severity so as to more nearly approximate occupational and social impairment with reduced reliability and productivity (i.e., a 50 percent rating) within 1 year prior to the receipt of his April 24, 2013, claim. With regard to the Veteran’s contention that the appropriate effective date is the date of his discharge from service, the Board notes that he filed his initial claim for service connection for an acquired psychiatric disorder within one year of his discharge in January 1980. This claim was denied in May and September 1980 rating decisions. The September 1980 rating decision became final and the Veteran did not perfect an appeal as to such decision. The Veteran did not submit another claim for service connection for an acquired psychiatric disorder until more than one year following the final September 1980 rating decision; here, he filed a claim to reopen that was received by VA in October 1981. Consequently, the evidence of record does not support an effective date back to the date after his discharge as the Veteran did not continually prosecute his claim from the initial claim for service connection in January 1980. The statute provides that the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). To hold otherwise also violates the Court’s express prohibition against filing a freestanding earlier effective date claim in order to collaterally attack a prior final rating action. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than April 24, 2013, for a 50 percent rating for service-connected paranoid schizophrenia. In summary, the Board finds that the criteria for an earlier effective date than April 24, 2013, for a 50 percent rating for paranoid schizophrenia have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.