Citation Nr: 21028456 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-41 063 DATE: May 11, 2021 ORDER An effective date prior to June 4, 2009, for the award of service connection for schizophrenia is denied. An effective date of June 4, 2009, but no earlier, for the award of special monthly compensation based on the need for regular aid and attendance (SMC) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. In a final decision issued in July 1978, the Agency of Original Jurisdiction (AOJ) denied service connection for schizophrenia. 2. In a final decision issued in October 2005, the AOJ determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a mental disability, to include schizophrenia. 3. Following the issuance of the final October 2005 rating decision, the Veteran did not file a formal or informal claim for service connection for an acquired psychiatric disorder, to include schizophrenia, prior to the receipt of his informal claim on June 4, 2009. 4. The Veteran's timely notice of disagreement with respect to the propriety of the initially assigned rating for schizophrenia in the September 2013 rating decision that awarded service connection for disability included an inferred claim of entitlement to SMC. 5. Resolving all doubt in the Veteran's favor, it is factually ascertainable that his service-connected schizophrenia rendered him so helpless as to be in need of the regular aid and attendance of another person as of June 4, 2009, the date of service connection for such disability. CONCLUSIONS OF LAW 1. The July 1978 rating decision that denied service connection for schizophrenia is final. 38 U.S.C. § § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). 2. The October 2005 rating decision that determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a mental disability, to include schizophrenia, is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005). 3. The criteria for an effective date prior to June 4, 2009, for the award of service connection for schizophrenia have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date of June 4, 2009, but no earlier, for the award of SMC have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2013 and March 2016 by a Department of Veterans Affairs (VA) Regional Office. In October 2018, the Veteran and his sister testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2019, the Board denied an effective date prior to June 4, 2009, for the award of service connection for schizophrenia and granted an effective date of February 5, 2014, but no earlier, for the award of SMC. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and, in an August 2020 Memorandum Decision, the Court vacated the Board's decision as to the denial of earlier effective dates and remanded the matter for further consideration. The case now returns to the Board. 1. Entitlement to an effective date prior to June 4, 2009, for the award of service connection for schizophrenia. As noted in the February 2019 decision, the Veteran previously asserted that the proper effective date of the award of service connection for schizophrenia is March 1974, immediately following his discharge from service; February 1977, the date of his original claim for pension; April 1978, the date of his original claim for compensation; or April 1981, June 1985, or April 2005, the dates of his applications to reopen previously denied claims. However, following the Board's denial in the February 2019 decision, the Veteran, through his representative, limited his argument to the allegation that the proper effective date for the award of service connection for schizophrenia is April 1978, the date of receipt of his original claim for compensation, as the July 1978 rating decision that denied such claim was not final. See October 2019 Brief for Appellant; December 2020 Post-Remand Memorandum. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In the February 2019 decision, the Board found that it need not address the Veteran's arguments as to why rating decisions issued through October 2005, to include the July 1978 rating decision, which previously denied his claims for service connection for a psychiatric disorder, however diagnosed, are not final as they were moot in light of the fact that a final September 2013 Board decision found that the October 2005 rating decision that denied the Veteran's application to reopen his previously denied claim for service connection for a mental disability, to include schizophrenia, is final, and such finding had not been challenged by an allegation of clear and unmistakable error (CUE). However, in the August 2020 Memorandum Decision, the Court found the Board's determination that it could not adjudicate the arguments reasonably raised about the finality of the July 1978 rating decision until the Veteran files a successful CUE challenge against the September 2013 Board decision was clearly erroneous and, therefore, reversed such finding. Similarly, in Dallman v. Wilkie, 33 Vet. App. 101 (2020), which was issued after the August 2020 Memorandum Decision, the Court found that a Board determination that a prior rating decision is final does not preclude an appellant from challenging the finality of that rating decision in an appeal of the effective date if service connection is granted. In the instant case, VA received the Veteran's original claim for service connection for schizophrenia on April 17, 1978. In a July 1978 rating decision, the Agency of Original Jurisdiction (AOJ) considered the Veteran's service treatment records, which reflected that, in July 1973, he had taken two pain pills and fell asleep during duty hours. Referral for a determination of the need of a psychiatric evaluation was made, but a subsequent note found that such was not necessary. Further, his separation examination showed that his psychiatric evaluation was normal. The AOJ further considered VA treatment records dated from February 1977 to March 1977, which reflected that a diagnosis of schizophrenia was uncertain. Thus, the AOJ found that, as the Veteran's service treatment records were negative for treatment or a diagnosis of schizophrenia and such did not manifest to a compensable degree within one year following separation, service connection was not warranted. Later that month, the Veteran was advised of the decision and his appellate rights, and entered a notice of disagreement in January 1979. In February 1979, additional VA treatment records showing a diagnosis of chronic schizophrenia rendered in connection with a hospitalization from January 1979 to February 1979 were received. In March 1979, the AOJ requested records from Dr. J.T., the Veteran's private physician; however, as will be discussed below, he did not respond to such request and his records were not received until April 1981. In a June 1979 statement of the case, the AOJ considered the entirety of the evidence of record, with specific citation to the aforementioned VA treatment records, and again denied the Veteran's claim for service connection for schizophrenia on the basis that there was no record of such disorder in service or within the one-year presumptive period after discharge. However, the Veteran did not file a timely substantive appeal following the issuance of the June 1979 statement of the case. Furthermore, no relevant service department records were subsequently received, and he does not contend otherwise. 38 C.F.R. § 3.156(c). Rather, he, through his representative, challenges the finality of the July 1978 on the basis of 38 C.F.R. § 3.156(b). In this regard, the Veteran's representative asserts the July 1978 rating decision never became final because VA allegedly failed to address the Veteran's arguments that were of record at the time of the issuance of the June 1979 statement of the case, and new evidence that was identified within one year of the issuance of the July 1978 rating decision (emphasis added). In this respect, 38 C.F.R. § 3.156(b) provides, as relevant, that new and material evidence received prior to the expiration of the appeal period, i.e., within one year of the issuance of a rating decision or 60 days of the issuance of a statement of the case, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period (emphasis added). 38 C.F.R. § 3.156(b). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). In this regard, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Further, if an AOJ renders a decision, but receives new and material evidence within the time the claimant has to appeal, such decision does not become final until the AOJ acts on the evidence. Lang v. Wilkie, 971 F.3d 1348, 1350 (Fed. Cir. 2020). VA is required to determine whether subsequently received materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by VA or was submitted to VA and (2) can reasonably be expected to be connected to the veteran's claim. Lang, supra. In the instant case, the Veteran's representative alleges that the Veteran identified additional evidence that was relevant to his claim within the appeal period pertaining to the July 1978 rating decision, which expired on August 19, 1979 (60 days from the issuance of the June 1979 statement of the case), to include records from General Electric as he alleged that he had to leave his job "due to nerves" and the Social Security Administration (SSA) as he indicated that he intended to file a claim. Further, he alleges that, while VA requested records from Dr. J.T., they were not addressed in the June 1979 statement of the case. Similarly, he claims that such failed to meaningfully address his contention, raised in a June 1979 statement, that his disability began in 1975, i.e., within one year of his discharge from service. However, the Board finds such arguments to be without merit. In this regard, as emphasized previously, 38 C.F.R. § 3.156(b) only applies to evidence that was physically or constructively received, not identified, within the applicable appeal period. Specifically, while the Veteran argues that VA should have requested records from General Electric and SSA, such is irrelevant to an inquiry under 38 C.F.R. § 3.156(b) as no relevant evidence from either entity was received within the applicable appeal period. Additionally, due to the fact that such records are outside of the VA system, they cannot be considered to have been constructively received within such time period. Moreover, while VA made an attempt to obtain records from Dr. J.T., he did not respond to VA's request. Additionally, to the extent that the records received from him in April 1981 included an August 1978 letter discussing the Veteran's psychiatric symptoms since May 1978 and his mother's attempt to obtain benefits on his behalf from General Electric, SSA, and VA, such letter was not received until April 1981 and cannot be considered to have been constructively received within the appeal period stemming from the July 1978 rating decision as it is from a private provider rather than VA. Thus, to the extent that the Veteran's representative argues that the June 1979 statement of the case failed to address such evidence, such argument is moot because it had not been received at such time. Finally, while the Veteran's representative alleges that the AOJ failed to meaningfully address the Veteran's contention, raised in a June 1979 statement, that his disability began in 1975, i.e., within one year of his discharge from service, in the June 1979 statement of the case, the Board notes that, prior to the 1990 effective date of what is now 38 U.S.C. § 5104(b), AOJs were not required to set forth in detail the factual bases for their decisions. Recognizing this, the Federal Circuit has explained that, in the absence of evidence to the contrary, the AOJ is presumed to have made the requisite findings. See Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed.Cir.2004); Pierce v. Principi, 240 F.3d at 1355-56. Thus, silence in a final AOJ decision made before 1990 cannot be taken as showing a failure to consider evidence of record. Eddy v. Brown, 9 Vet. App. 52, 58 (1996). Moreover, as the June 1979 statement of the case specifically found that schizophrenia was not present within the one-year presumptive period after discharge, such essentially addressed such argument. Consequently, as 38 C.F.R. § 3.156(b) is inapplicable to the July 1978 rating decision and associated June 1979 statement of the case, such rating decision is final. 38 U.S.C. § § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). Further, while not the crux of the Veteran's representative's argument, she made passing statements in her December 2020 Post-Remand Memorandum that other decisions that continued the prior denial of the Veteran's claim for service connection for a psychiatric disorder were not final. However, her statement that the record does not contain notification to the Veteran of the denial of his March 1981 claim in an April 1981 rating decision is patently untrue. Rather, the record includes correspondence dated on April 30, 1981, that clearly advises the Veteran of the denial of his "claim to establish service connection for a nervous disorder" and provides notification of his appeal rights. The Veteran's representative also argues that the Veteran's June 1985 application for service connection for paranoid schizophrenia remained pending as the AOJ did not notify the Veteran that such claim was closed due to his failure to prosecute after he did not respond to an April 1986 letter requesting that he complete new authorization forms so as to allow VA to obtain private treatment records as those he previously provided were out of date. However, VA regulations do not require such notice. Specifically, where evidence requested in connection with an initial claim or supplemental claim or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received (emphasis added). 38 C.F.R. § 3.158. Thus, such argument is likewise without merit. Furthermore, the Board finds that the October 2005 rating decision that determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a mental disability, to include schizophrenia, is final. In this regard, the Veteran was advised of such decision and his appeal rights the same month, but did not enter a notice of disagreement with such decision. Additionally no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision. In this regard, the only evidence submitted during the time period between the issuance of the October 2005 rating decision and the Veteran's June 4, 2009, application contained private treatment records received on October 20, 2006, more than one year after notification of the rating decision and irrelevant to the issue of service connection for an acquired psychiatric disorder. Further, no relevant service department records have since been received. Therefore, the October 2005 rating decision is final, a fact which the Veteran's representative acknowledged in her December 2020 Post-Remand Memorandum. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005). As such, the remaining question is whether the Veteran filed an informal or formal claim following the October 2005 rating decision but prior to the receipt of his informal claim on June 4, 2009. Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was 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. 38 C.F.R. § 3.155(a). Treatment records do not constitute informal claims when service connection has not yet been established for the condition. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Rather, a veteran's claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality. Sellers v. Wilkie, 965 F.3d 1328 (2020). Here, the Board finds it cannot construe any document as a formal or informal claim to reopen the issue of service connection for an acquired psychiatric disorder, to include schizophrenia, prior to the receipt of the informal claim on June 4, 2009, and, therefore, an earlier effective date for the award of service connection is not warranted. The sole evidence received during such period contains private treatment records from the Jewish Hospital dated in October 2006 and November 2006 that only address a heart disorder. There are no references to a psychiatric disorder or treatment therefor, to include schizophrenia, and the records do not demonstrate a communication or action indicating an intent to apply for service connection for such a disorder. Further, neither the Veteran nor his representative assert that the Veteran submitted a claim during such period. Consequently, June 4, 2009, the date of receipt of the Veteran's informal claim following the issuance of the October 2005 rating decision, is the proper effective date for the award of service connection for schizophrenia. There is no doubt to be resolved and the appeal must be denied. 2. Entitlement to an effective date prior to February 5, 2014, for the award of SMC. The Veteran, through his representative, asserts that an effective date of June 4, 2009, is proper for the award of SMC. Specifically, she argues that the Board should have sympathetically read the Veteran's June 4, 2009, statement seeking to reopen his claim for schizophrenia to include a claim for SMC and, as the evidence established his eligibility for such benefit as of such date, it is the proper effective date for such award. SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule and provides a higher rate of compensation for service-connected disabilities. Therefore, the purpose of this case, a claim for SMC is considered akin to a claim for an increased rating. In this regard, the law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The pertinent statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Additionally, in Akles v. Derwinski, 1 Vet. App. 118, 121 (1991), the Court held that the Board is charged with considering a veteran's entitlement to the maximum benefit available, to include consideration of whether an increased rating claim encompasses a claim for SMC. Additionally, SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim. Bradley v. Peake, 22 Vet. App. 280 (2008). As indicated previously, the September 2013 rating decision awarded service connection for schizophrenia, and assigned a 100 percent rating as of June 4, 2009. In September 2014, the Veteran filed a timely notice of disagreement with the effective date assigned for the award of service connection. While such appeal was pending, he submitted clarification of his notice of disagreement, which was received in February 2015, and presented an argument for entitlement to SMC as an inferred issue. Consequently, the Board finds that the Veteran's timely notice of disagreement with respect to the propriety of the initially assigned rating for schizophrenia in the September 2013 rating decision that awarded service connection for disability included an inferred claim of entitlement to SMC. Thus, the earliest possible effective date for the award of SMC is June 4, 2009, the effective date for the award of service connection for schizophrenia. Accordingly, the remaining question is whether it is factually ascertainable that the Veteran was in need of the regular aid and attendance of another person so as to warrant SMC prior to February 5, 2014. The basic criteria for regular aid and attendance are set forth in 38 C.F.R. § 3.352(a) in accordance with 38 C.F.R. § 3.351(c)(3). The following are accorded consideration: inability of claimant to dress or undress, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. First, consistent with the assignment of the initial 100 percent rating for the Veteran's schizophrenia, the Board finds the severity of such disability remained consistent since the effective date of service connection. Second, the Board finds the medical evidence indicates the nature of the Veteran's need for aid and attendance from June 4, 2009, to February 5, 2014, was akin to his reliance on his sister after the latter date. In this regard, a July 2010 VA examination report indicates the Veteran lived alone, but this sister visited him on a daily basis to bring him food, cook for him, and help him with tasks like paying bills and shopping. She also forced him to keep up with his bathing and laundry. According to the report, his mother had previously provided the same assistance prior to her death, and he had needed such type of assistance for "years." Following psychological examination of the Veteran, the VA examiner found his current psychosocial functional status was "very impaired" as demonstrated by his "dependence on his sister" for basic activities of daily living, his long history of unemployment, his chronic and persistent thought disorder symptoms, and his personality disorder symptoms. Specifically, although the VA examiner found the Veteran was able to maintain minimum personal hygiene, he also determined that he had severe problems with self-feeding and engaging in sports/exercise and moderate problems with grooming, bathing, and other recreational activities. Additionally, the VA examiner reported that the Veteran's significant psychiatric symptoms prevented shopping and driving. Moreover, he noted that the Veteran's sister handled his finances for him without formal designation as his fiduciary or power of attorney, and ultimately opined the Veteran's schizophrenia resulted in total occupational and social impairment. Notably, such report mirrors the August 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance upon which the award of SMC was originally based. Based on the foregoing, the Board finds the Veteran's limitations due to his service-connected schizophrenia have persisted in a similar severity since the effective date of service connection. Consequently, it is factually ascertainable that his service-connected schizophrenia rendered him so helpless as to be in regular need of aid and attendance throughout the appeal period. Therefore, the Board finds the criteria for an earlier effective date of June 4, 2009, but no earlier, for the award of SMC have been met, and the appeal is granted to such extent. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.