Citation Nr: 21031611 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-17 990 DATE: May 24, 2021 ORDER An effective date earlier than October 31, 2017, for the grant of service connection for schizophrenia, to include alcohol/cannabis use disorder, is denied. FINDING OF FACT The Veteran did not submit new and material evidence pertaining to the denial of service connection for a psychiatric disorder within one year of an August 1993 Agency of Original Jurisdiction (AOJ) decision. CONCLUSION OF LAW The criteria for an effective date earlier than October 31, 2017, for the grant of service connection for schizophrenia, to include alcohol/cannabis use disorder, have not been met. 38 U.S.C. §§ 5101, 5102; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 decision by the AOJ. The Veteran appealed this decision to the Board, which issued a denial in January 2020. The Veteran perfected an appeal to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court endorsed a Joint Motion for Remand filed by both parties to the case, vacated the Board's January 2020 decision, and remanded the appeal for further action in accordance with the Joint Motion. In the January 2020 decision, the Board reviewed the various communications from the Veteran over the years prior to October 2017 to determine whether he had submitted a timely notice of disagreement to any of the denial decisions on record, whether he had submitted an unaddressed informal claim for service connection for schizophrenia, or whether he had submitted new and material evidence within one year of any denial decisions. The Board concluded that the Veteran had not done any of these things and concluded that all prior denials had become final, with no unaddressed claims, informal or otherwise. The authors of the Joint Motion for Remand, however, pointed to a January 1994 communication from the Veteran's treating physician in which she recommended that VA appoint a payee to handle the Veteran's VA pension benefits. The VA acted upon this letter, and began proceedings to declare the Veteran incompetent, but did not analyze it in terms of whether it constituted new and material evidence following an August 1993 denial decision. In the Joint Motion, the parties suggested that because the letter was received several months after the August 1993 AOJ decision which denied service connection for posttraumatic stress disorder (PTSD), the Board had failed to address whether the letter indicated an intention to file a claim under the provisions of 38 C.F.R. § 3.156(b). Therefore, the Board must now determine whether the January 1994 letter from the Veteran's physician constitutes new and material evidence under this provision. It is important to note that the other bases for the Board's January 2020 decision were not challenged by the authors of the Joint Motion for Remand; the Board's failure to discuss the January 1994 letter was the sole focus of the Joint Motion. Historically, the Veteran had filed several claims for service connection for a psychiatric disability over the years. In April 1974, the AOJ denied service connection for an anxiety reaction. In August 1992, the AOJ denied service connection for PTSD, but granted pension benefits for schizophrenia. The AOJ denied service connection for PTSD again in February 1993 and August 1993. Service connection for schizophrenia was eventually granted in May 2018, effective in October 2017, corresponding with the date the Veteran's claim was received. Initially, the Board notes that some of the confusion in this case may involve the various diagnostic labels that the Veteran has used over the years, as he sought service connection for anxiety and PTSD, as well as schizophrenia, alcohol abuse and cannabis use. Currently applicable case law dictates that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, since 2009, VA has been required to view claims involving psychiatric disability broadly, analyzing not only diagnosis labels, but symptoms indicating psychiatric impairment. Prior to 2009, however, the AOJ was acting within the law when adjudicators narrowly construed the Veteran's claims as involving "anxiety" or "PTSD," based upon the claims he himself had filed. The U.S. Court of Appeals for the Federal Circuit's (Federal Circuit's) decisions in Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) and Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), require VA to "assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim." Id. at 9 (quoting Bond, 659 F.3d at 1367). Turning to the analysis of the case, the Court has ordered that the Board analyze carefully whether the Veteran, or his physician acting on his behalf, submitted evidence which could be viewed as new and material within one year of the August 1993 AOJ decision which denied service connection for PTSD. During this year, the Veteran corresponded with the AOJ on the subject of his continuing eligibility for VA pension benefits several times. He submitted an Eligibility Verification Report form, in which he affirmed that he had no other source of income and no earned income. He also wrote a letter to VA requesting that his treating physician receive and be responsible for his monthly pension checks. At no point during the year did he mention his mental health impairment, his service, or any connection between them. At no point did he indicate a belief that he should be service connected for schizophrenia, or disagree in any way with the August 1993 denial of service connection of PTSD. In the January 1994 letter at issue here, which is written on Indian Health Service letterhead, the Veteran's physician made the following statements, set forth in full: To whom it may concern, I am writing at the request of [the Veteran] to recommend the appointment of a protective payee for the management of his Veteran's benefits. [The Veteran] has been in my care for four years. He has schizoaffective disorder and a severe substance abuse problem. His thoughts are often disjointed and not reality-based. Over the last four years we have seen [the Veteran] repeatedly spend his monthly benefits on alcohol for himself and his friends, and he also gives it away impulsively or spends the whole amount impractically (on Readers Digest books, for example) and then spends the rest of the month hungry and disheveled. [The Veteran's] psychiatric problems are chronic in nature and I do not reasonably expect him to return to a state in which is his competent to manage his financial affairs. He has requested that I become his payee and I would be willing to assume this role. My name, address, and social security number are as follows: [omitted] Please let me know what other information will be needed to process the change of payee. As noted above, the VA appropriately treated these two requests, from the Veteran and his physician, as an indication that the Veteran was incompetent for purposes of managing his VA benefits, and began proceedings to have him formally declared incompetent. Turning to the letter from the Veteran's physician, even reviewing it in a light most beneficial to the Veteran, the Board is unable to perceive the content as pertaining to a claim for service connection. There is nothing in this letter referring to the August 1993 AOJ decision, or to the Veteran's service, or to a medical nexus between the Veteran's schizophrenia and service. The stated and explicit purpose of the letter was to show that the Veteran's schizophrenia was totally disabling and prevented him from using his VA pension benefits to care for himself. However, that the Veteran had schizophrenia which was totally disabling had already been established, when pension benefits were awarded. Nothing in this letter tends to indicate any connection to service or any disagreement with the August 1993 AOJ decision, particularly as the two documents speak of separate and distinct psychiatric diagnoses. Indeed, the letter contains nothing relevant, helpful, or in any way new and material to the question of whether service connection for schizophrenia was warranted. In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. § 3.1(r), 3.400. All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. There is no provision in the law for awarding an earlier effective date based simply on the presence of a disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the Veteran to seek service connection for the disability). Rather, a formal or informal claim expressing an intention to seek a benefit must be filed with VA to trigger a review of the merits of that claim. In this case, there is no such communication indicating an intention to seek service connection for schizophrenia, or any mental disability, during the year following the August 1993 AOJ decision. Rather, the Veteran's statements and the physician's statement are unequivocally read as pertaining to making a better arrangement for the payment of the Veteran's pension benefits so as to protect the Veteran. There is simply no indication of an intention to seek service connection in these communications. The preponderance of the evidence is therefore against a finding that VA received a claim, or new and material evidence, or received any indication of the Veteran's intention to seek service connection during the year following the August 1993 AOJ decision. The appeal is denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.