Citation Nr: 21030725 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-07 251A DATE: May 19, 2021 ORDER Entitlement to an earlier effective date of February 26, 1969 for an award of service connection for an acquired psychiatric disorder, for accrued benefits purposes, is granted. Entitlement to an earlier effective date of February 26, 1969 for an award of a 100 percent rating for service-connected acquired psychiatric disorder, for accrued benefits purposes, is granted. FINDINGS OF FACT 1. The appeal for service connection for an acquired psychiatric disorder has been pending since the Veteran filed this claim on February 26, 1969. 2. In rating decisions issued in July 1971 and in June 1977, the RO denied the Veteran's claim but did not notify him of his appellate rights until it issued a subsequent rating decision in September 1997; thus, the time period to initiate an appeal of the July 1971 rating decision did not begin to run until September 1997. 3. The record evidence supports assigning an effective date of February 26, 1969, for an award of service connection for an acquired psychiatric disorder, for accrued benefits purposes. 4. The record evidence supports assigning an effective date of February 26, 1969, for a 100 percent rating for the service-connected acquired psychiatric disorder, for accrued benefits purposes. CONCLUSION OF LAW 1. The criteria for entitlement to an earlier effective date of February 26, 1969, for an award of service connection for an acquired psychiatric disorder, for accrued benefits purposes, have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 20.302, 20.1103 (2019). 2. The criteria for entitlement to an earlier effective date of February 26, 1969, for an award of a 100 percent disability rating for service-connected acquired psychiatric disorder, for accrued benefits purposes, have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1953 to October 1953. He died in October 2004. The Appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case has a lengthy and complicated procedural history. It has been before the Board previously on several occasions, most recently in September 2019 where it was remanded to reset the case back to its original state prior to the beginning of prejudicial errors which occurred in the September 2015 Board decision. In other words, the Board essentially determined in September 2019 that the prejudicial errors in its prior decision issued in September 2015 merited setting aside that decision and adjudicating this appeal as if the September 2015 Board decision had never been issued. The Board also essentially determined that resetting this appeal to the status quo ante the September 2015 decision was the most Veteran-friendly approach here given the prejudicial errors which occurred in this appeal prior to this date. The Board notes that there was substantial compliance with its September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Appellant contends that an earlier effective date prior to May 17, 1997 is warranted for both the grant of service connection and for the assignment of a 100 percent rating for an acquired psychiatric disorder, each for accrued benefits purposes. Specifically, she alleges that she is entitled to an earlier effective date of February 26, 1969, for both of these claims due to the existence of pending claims where an appeal was initiated but not acted upon by the RO and evidence in the file. The Board notes that, generally, the effective date of an evaluation and award of 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(b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran filed an original claim for entitlement to service connection for an acquired psychiatric disability in July 1957 which the RO denied in an August 1957 rating decision. He did not appeal this decision. In September 1957, this claim was reconsidered based on newly submitted medical evidence and the RO continued the denial of service connection. The Board notes that, as he submitted new evidence within a year of the August 1957 rating decision, that rating decision remained open. He did not appeal the September 1957 rating decision, however. In January 1959, the claim was reconsidered again due to additional medical evidence received in November 1957 reflecting hospitalization resulting in a psychiatric diagnosis. The RO once again continued the denial of service connection. He did not appeal this decision. Having reviewed the record evidence, the Board finds that the August 1957, September 1957, and January 1959 rating decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(a), 20.1103. Subsequently, on February 26, 1969, the Veteran filed a request to reopen the previously denied service connection claim for an acquired psychiatric disability; however, the RO failed to adjudicate this claim after it was received by VA. He filed another claim to reopen in June 1971 which was denied in a July 1971 rating decision. He did not appeal this decision. In May 1977, he again filed a claim to reopen which was denied in a June 1977 rating decision. He did not appeal this decision. The Board notes that, normally, the July 1971 and June 1977 rating decisions constitute final decisions. Id. A review of the claims file reflects, however, that the Veteran was not notified of his appellate rights following either the July 1971 or June 1977 rating decisions as was required by law at the time each of these decisions was issued by VA. See 38 C.F.R. § 19.109(a) (1971 & 1977). Therefore, the time period to initiate an appeal of the June 1971 and July 1977 rating decisions did not begin to run until he was notified of his appellate rights. See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2003). In July 1984, the Veteran filed another claim to reopen the previously denied service connection claim for an acquired psychiatric disorder which the RO denied in a July 1984 rating decision. He timely appealed this decision in January 1985; however, the RO did not issue a statement of the case (SOC) in response to the Veteran's notice of disagreement to continue the appeal. Therefore, the appeal of the July 1984 rating decision remained open. In May 1997, the Veteran filed another claim to reopen which was denied by the RO in a September 1997 rating decision. He timely appealed this decision in September 1997. An SOC was issued in January 1998. He filed a substantive appeal in April 1998. The Board notes that, although the April 1998 substantive appeal was filed more than 60 days after issuance of the January 1998 SOC, the Veteran's appeal is considered timely. The RO first informed the Veteran of his appellate rights in September 1997 (albeit with regard to the September 1997 rating decision) which triggered the appeal period for perfecting an appeal of the July 1971 decision. In other words, the Veteran had 1 year from the September 1997 notice of appellate rights (which was the first time the RO notified him of his appellate rights) in order to file a substantive appeal. As noted, he filed his substantive appeal in April 1998. Thus, the April 1998 substantive appeal is considered timely with regard to the July 1971 decision. Because this appeal has been pending since February 26, 1969, that is the date of the currently appealed claim. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA may waive timely filing of substantive appeal implicitly or explicitly and as to any issue or claim raised in substantive appeal). The Board subsequent granted service connection for an acquired psychiatric disorder for accrued benefits purposes in an August 2011 decision. The RO implemented the Board's decision in September 2011, assigning a 100 percent evaluation effective May 16, 1997, based on the date of receipt of the Veteran's claim which resulted in the Appellant's claim for accrued benefits. As noted above, however, the Veteran's claim has been pending since February 26, 1969. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that an effective date of February 26, 1969, for an award of service connection for an acquired psychiatric disorder for accrued benefits purposes is warranted. The Board next finds that an effective date of February 26, 1969, for the 100 percent rating assigned for the service-connected acquired psychiatric disorder, for accrued benefits purposes, also is warranted. The medical evidence of record reflects that this disability resulted in complete social and industrial inadaptability under 38 C.F.R. § 4.130 throughout the appeal period. See generally 38 C.F.R. § 4.130 (effective prior to May 1, 1997). Pursuant to 38 C.F.R. § 4.130 (effective prior to May 1, 1997), a 100 percent rating was assigned for active psychotic manifestations of such extent as to produce total social and industrial inadaptability or for continuous hospital care of six months or longer. Id. And, as discussed above, the appeal period began on February 26, 1969 (the date that he filed his service connection claim which remained pending until he perfected a timely appeal in April 1998). The record evidence shows that, in an August 1957 VA psychiatric examination, the examiner diagnosed the Veteran with schizophrenic reactions of a residual type. It was noted that the Veteran was hospitalized for more than 90 days prior to his discharge from service, which resulted in him receiving electric treatments to put him to sleep every day. After discharge it was noted that he was hospitalized for one day in 1954; and he currently had some reference of ideas to delusions and hallucinations. In a September 1957 VA hospital record, the Veteran was diagnosed with schizophrenic reaction, undifferentiated type, manifested by mild confusion, delusions, auditory hallucinations, persecutory in nature with ideas of reference, preoccupation with autistic and dereistic thinking, inattentiveness, lack of insight, and poor judgment. In a September 1961 VA hospital record, the examiner diagnosed the Veteran with schizophrenic reactions of a paranoid type, manifested by somatic delusions, suspiciousness, and withdrawal from people. It was noted that the Veteran returned to the hospital with delusional complaints, and signs of depression and poor insight. In a December 1962 VA hospital record, the examiner once again diagnosed the Veteran with schizophrenic reactions of a paranoid type, manifested by somatic delusions, suspiciousness, and withdrawal from people. It was noted that the Veteran experiences depression. In a January 1969 VA hospital summary, the Veteran was reported to have been in the hospital until his discharge in March 1969, where he was diagnosed with anxiety reactions and showed evidence of poor hygiene in his teeth. In a March 1970 VA examination, the examiner diagnosed the Veteran with psychosis in remission, with symptoms of loosened thinking and unreliability. In lay statements submitted by the Veteran, it was noted that he suffered from mental disabilities in service that resulted in shock treatments that damaged his nervous system causing a weakened mind, to which he continued to experience psychiatric conditions post-service that forced him to be in and out of hospitals for treatment since 1954. He further noted that he could not care for himself, nor hold a job due to his desire to hurt people. The record evidence shows that the Veteran's service-connected acquired psychiatric disorder manifested to a severity and frequency that more closely approximated active psychotic manifestations of such extent as to produce total social and industrial inadaptability or for continuous hospital care of six months or longer. It also shows that these manifestations continued throughout the appeal period which began on February 26, 1969 (the date that he filed his service connection claim which remained pending until he perfected a timely appeal in April 1998, as discussed above). In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that an effective date of February 26, 1969, for a 100 percent rating for the service-connected psychiatric disorder for accrued benefits purposes is warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.