Citation Nr: 21020889 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-42 843 DATE: April 8, 2021 ORDER Entitlement to an effective date of November 30, 1990, but no sooner, for the award of service connection for schizoaffective disorder, depressed type, is granted. FINDINGS OF FACT 1. The Veteran filed an informal claim for entitlement to service connection for schizoaffective disorder that was received by VA on November 30, 1990, and there were no formal claims, informal claims, or written intent to file claims for entitlement to service connection for a psychological condition prior to that date. 2. The claim was denied in a March 13, 1991 rating decision that became final because the Veteran did not perfect his appeal. 3. In November 2013, VA received relevant official service department records that existed and were obtainable but were not associated with the claims file when VA first decided the claim in March 1991. CONCLUSION OF LAW The criteria for an effective date of November 30, 1990, but no sooner, for the grant of service connection for schizoaffective disorder, have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from October 1979 to April 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied entitlement to an effective date prior to June 13, 2013 for the award of service connection for schizoaffective disorder, depressed type; entitlement to service connection for posttraumatic stress disorder (PTSD); as well as appeals to establish that there was clear and unmistakable error (CUE) in March 1991 and March 1996 rating decisions. The Board also remanded entitlement to service connection for hypertension. A subsequent, March 2020 Board decision denied service connection for hypertension. Therefore, that matter is no longer before the Board. The Veteran appealed the portion of the February 2019 Board decision which denied an effective date prior to June 13, 2013 for the award of service connection for schizoaffective disorder, depressive type, to the United States Court of Appeals for Veterans Claims (Court) resulting in an April 2020 Joint Motion for Partial Remand (JMPR) by the parties. The parties agreed that the Court should dismiss the appeal of the Board’s decision to the extent it denied service connection for PTSD and determined that the March 1991 and March 1996 rating decisions did not contain CUE. Accordingly, those matters are not before the Board. A May 2020 Court Order remanded this matter for compliance with the JMPR. This case was previously before the Board in October 2020, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. EFFECTIVE DATES According to applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based upon an original claim 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. The date of entitlement to an award of service connection 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 effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to an effective date earlier than June 13, 2013 for the grant of service connection for schizoaffective disorder, depressed type The Veteran contends that an earlier effective date is warranted for his schizoaffective disorder because he has had this disability since service. As such, he asserts that the effective date should relate back to his initial application for VA compensation, which he filed on November 30, 1990, or his application to reopen the previously denied claim, which he filed on August 21, 1995. In this case, the basic facts are not in dispute. The Veteran’s claim of service connection for a psychiatric disorder was denied in a March 13, 1991 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran’s petition to reopen the claim of service connection for a psychiatric disorder was subsequently denied in a March 5, 1996 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran’s petition to reopen his claim of entitlement to service connection for a psychiatric disorder was received by VA on June 13, 2013. In a November 2015 rating decision, the RO granted service connection for schizoaffective disorder, effective June 13, 2013, the date of receipt of the application to reopen the service connection claim. The claim was granted in a November 2015 rating decision based on a VA psychiatric examination, a performance evaluation, the March 1980 AWOL documentation, and service treatment records. The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 U.S.C. §§ 5110(a), (i), 5108; 38 C.F.R. § 3.400(q), (r); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The award can be made effective no earlier than the date of the new application. 38 U.S.C. §§ 5110(a), (i), 5108; 38 C.F.R. §§ 3.156(c), 3.400(q), (r). However, as noted above, an exception to this rule occurs when the new and material evidence includes service department records. 38 C.F.R. § 3.156(c); Vigil v. Peake, 22 Vet. App. 63 (2008). Specifically, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Service department records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). Service department records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based “all or in part” on additional service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). As such, the Board has considered whether 38 C.F.R. § 3.156(c) pertains to this claim. Subsection (c)(1) of the regulation demands that, “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1). Here, the newly records associated with the claims file included service personnel records and service treatment records, which were received by VA on November 26, 2013. These newly received service treatment records consisted of dental treatment documents which speak to dental issues that the Veteran experienced while in active service. Another set of service treatment records contain the transfer paperwork for the Veteran’s health record, which was moved from a clinic to the Naval Military Personnel Command Liaison Office. Another set of service treatment records show that the Veteran underwent a separation examination in October 1979. At that time, the Veteran denied any psychiatric problems or issues, and his psychiatric evaluation was normal. As for the service personnel records, the scanned document folder contains requests for the Veteran’s military records, one which he filed in June 1989, one which he filed in May 1991, and one which he filed in February 2001. In the requests, the Veteran asked for a copy of his separation document (DD Form-214) and a complete copy of the service personnel records and service treatment records. The remaining service personnel records consist of the Veteran’s enlistment documents, history of assignment, administrative remarks, application for enlistment and enlistment performance records. Service medical records showed that the Veteran was deemed fit for service and displaying normal psychiatric systems. The Veteran denied any preexisting psychiatric conditions. See service medical records, October 25, 1979. The service personnel records detailed that the Veteran turned himself in on March 3, 1980 after being in an unauthorized absence status since approximately February 4, 1980. See service personnel records, March 3, 1980. The Veteran was subjected to commanding officer nonjudicial punishment for going AWOL for about 27 days. See service personnel records, March 7, 1980. Further service personnel records showed that the Veteran was noted as having performed inadequately and as needing constant supervision. See service personnel records, March 16, 1980. The Veteran was advised that the command intended to recommend his discharge from the Navy by reason of unsuitability due to apathy and defective attitudes. See service personnel records, March 25, 1980. At his separation, the Veteran was noted as not being recommended for reenlistment due to unsuitability, apathy, defective attitudes, and inability to expend effort effectively. The records indicated that reenlistment would not be affected without prior approval of the Chief of Naval Personnel. See service personnel records, April 2, 1980. The Board finds that the service personnel records and the service treatment records are relevant to the claim on appeal. VA had to reconsider the Veteran’s claim under 38 C.F.R. § 3.156(c), as the official service department records were relevant to the claim on appeal – there was evidence in them which would speak to the entitlement to an earlier effective date for the Veteran’s psychiatric disorder. As indicated above, the basis of the November 2015 grant of service connection for a schizoaffective disorder was based on a VA psychiatric examination, a performance evaluation, the March 1980 AWOL documentation, and service treatment records. See rating decision, November 10, 2015. The Veteran’s poor performance and AWOL are exactly the issues to which the official service department records speak. These are the relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. These records were in existence at the time of the March 2011 rating decision and were just not associated with the record. As such, the requirements of 3.156(c) have been met and VA must reconsider the claim. Ultimately, based on the laws and regulations previously cited, and after reviewing the totality of the evidence, the Board finds that an effective date of November 30, 1990, but no sooner, for the award of service connection for a schizoaffective disorder, depressed type, is warranted. (Continued on the next page)   Accordingly, the Board finds that, affording the Veteran the full benefit of the doubt, an effective date of November 30, 1990, but not earlier, for the award of service connection for a schizoaffective disorder is warranted, and the Veteran’s claim must be granted. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.102, 3.155(a), 3.156(c), 3.400. CHISTOPHER J. O’DONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.