Citation Nr: 21005491 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 08-34 109A DATE: February 1, 2021 ORDER An earlier effective date of March 15, 1976, but not earlier, for the establishment of service connection for schizophrenia, for accrued benefits purposes, is granted. FINDINGS OF FACT 1. On March 15, 1976, the Veteran filed a service connection for schizophrenia. 2. An April 1982 rating decision denied service connection for schizophrenia. 3. New and material VA treatment records regarding the Veteran’s schizophrenia were constructively received in May 1982, within one year of the April 1982 rating decision, and as such, the April 1982 rating decision was not final. CONCLUSION OF LAW The criteria for an effective date of March 15, 1976, but not earlier, for the establishment of service connection for schizophrenia have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1972 to August 1974. The Veteran died in September 2005. The appellant is the Veteran’s surviving spouse. In January 2016, the Board granted an earlier effective date for the grant of service connection for schizophrenia effective May 7, 1988, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In September 2018, the Court vacated the Board’s decision, and remanded the claim to the Board for action consistent with its decision. In August 2019, the Board remanded the claim for further development consistent with the September 2018 Court decision. Earlier Effective Date The appellant asserts that the Veteran is entitled to an earlier effective date for the grant of service connection for schizophrenia. Specifically, she asserts that he should have an effective date consistent with the date VA received his initial service connection claim. For the reasons discussed below, the Board finds that the Veteran is entitled to an effective date of March 15, 1976, for the grant of service connection for schizophrenia. The Court determined that the Board previously found that the Veteran filed a service connection claim in March 1976 that was not adjudicated until an April 1982 rating decision. The Court found that the Board did not address whether a May 1982 VA Form 10-7131 constituted new and material evidence, and as such, resulted in the March 1976 claim to remain pending. The appellant’s representative asserts that the April 1982 rating decision denying service connection for schizophrenia was not final due to constructive possession of VA records. Specifically, the appellant’s representative cited a May 1982 VA Form 10-7131. The form identifies the Veteran, identifies the originating facility as the Tuscaloosa VA Medical Center, and identifies the Veteran with an admission diagnosis of schizophrenia. In an August 2019 Board decision, the Board found that the May 1982 VA Form 10-7131 triggered VA’s duty to assist the Veteran in obtaining pertinent VA treatment records. The Board remanded the claim to obtain any outstanding medical records. The new medical records show that the Veteran was diagnosed with schizophrenia in March 1976, received treatment for schizophrenia, was hospitalized for schizophrenia from January 1977 to March 1977, and hospitalized again for schizophrenia in May 1982. The Board finds that new and material evidence was received within the year following the April 1982 rating decision, as those records showed that the schizophrenia was not in remission (in contrast to the records before the Board at the time of the 1982 rating action). As such, additional pertinent evidence concerning his schizophrenia was received within the appeal period as the VA was in constructive possession of VA treatment records created within one year of the April 1982 rating decision. Turner v. Shulkin, 29 Vet. App. 207, 218 (2018). Accordingly, the April 1982 rating decision was not final. 38 C.F.R. § 3.156(b). The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The Veteran filed an initial service connection claim for schizophrenia that was received on March 15, 1976, that was not adjudicated by the RO until an April 1982 rating decision. New and material evidence was received within one year of the April 1982 rating decision, and as such, the rating decision was not final. As such, the date of receipt for his service connection claim for schizophrenia was March 15, 1976. Accordingly, the criteria for an effective date of March 15, 1976, for the establishment of service connection for schizophrenia have been met, and the claim is granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.