BVA9502084 DOCKET NO. 93-05 436 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an effective date earlier than December 8, 1989, for assignment of a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from November 1972 to April 1973. This case came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, in January 1991 which granted him a permanent and total disability rating for pension purposes and assigned an effective date of December 8, 1989, for that award. The veteran appealed the assigned effective date. During the pendency of this appeal, additional rating decisions also denied the veteran entitlement to special monthly pension and concluded that no new and material evidence had been presented to reopen his claim for service connection for a psychiatric disorder. Neither issue is in appellate status. However, the Board would draw the RO’s attention to a statement made by the veteran, received in June 1992, for consideration of whether this might be construed as a notice of disagreement with the May 1992 rating decision regarding the psychiatric disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts, generally, that the award of a permanent and total disability rating for pension purposes should have been made effective as of the date of his separation from service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that no earlier effective date may be assigned for the award of a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. In a decision dated in January 1988, the Board denied entitlement to a permanent and total disability rating for pension purposes. 2. The record shows that the veteran became permanently and totally disabled on July 26, 1989. 2. Communication received from the veteran on December 8, 1989, was construed as an application to reopen his claim for VA pension benefits. 3. A rating decision in January 1991 granted the veteran a permanent and total disability rating for pension purposes, effective from December 8, 1989. 4. The veteran first claimed entitlement to retroactive pension benefits in a statement received in May 1991. CONCLUSION OF LAW An effective date prior to December 8, 1989, for an award of a permanent and total disability rating for pension purposes is not warranted. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. §§ 3.151, 3.160(d)(e), 3.400(b)(1)(ii) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background Entitlement to a permanent and total disability rating for pension purposes was denied by the RO in July and November 1984 and in February 1987, and by the Board in January 1988. Private medical records dated from 1970 indicate that the veteran has a long history of psychiatric illness and hospitalizations. In September 1987 he was judicially determined to be incompetent and was involuntarily committed to a private hospital. After appropriate treatment, the veteran’s initial acute psychosis abated, and he was found to be competent and discharged in late October 1987. At the time of discharge, the examiner stated that the veteran’s prognosis "to stay out in the community for a prolonged period [was] fairly GOOD in view of his previous history of staying out and his motivation to take his medication and go to outpatient clinic." However, the veteran was again hospitalized involuntarily on July 26, 1989, after he had been wandering around in the streets claiming that there was a person trying to hurt him, and he reportedly attacked that person with a knife. At the time of admission, the veteran was very guarded and hostile, not maintaining eye contact. He appeared anxious and angry. His speech was relevant, but his answers were very brief and guarded. There was no looseness of association or disorganized thinking; however, he repeatedly showed paranoid delusions. He also admitted to having auditory hallucinations. The veteran’s mood was anxious, and his affect was appropriate to his mood. He was completely oriented, and his memory was adequate. However, his insight and judgment were poor. Initially during the hospitalization, and despite medication, the veteran remained psychotic, sexually preoccupied, and inappropriate in his behavior. By the middle of October 1989, however, he showed appropriate behavior on the ward, and started speaking coherently, without paranoia or excessive sexual preoccupation. He started showing some insight into his illness and his previous behavior. He was discharged on November 13, 1989. The claims file contains a hand-written note apparently from the veteran stating: "Tired very easily and plus I was very weak." This note was received at the RO on December 8, 1989, and was construed as a reopened claim for VA pension benefits. It was this claim, which followed the final decision of the Board (see 38 U.S.C.A. § 7104) on the veteran's previous claim for pension, that resulted in the development of considerable evidence, including the reports of the veteran's July 26, 1989 hospitalization, and which ultimately established his entitlement to a permanent and total disability rating. A personal hearing was conducted at the RO in September 1990, in conjunction with his claim for entitlement to pension. The veteran provided testimony as to the current severity of his psychiatric symptoms, and indicated that, since his 1989 hospitalization, he had been receiving treatment in the outpatient clinic and was taking psychotropic medication. The veteran was afforded a VA compensation examination which was conducted in October and November 1990. After reciting clinical findings very similar to those noted during the 1989 hospitalization, the VA examiner concluded that the veteran’s current level of function, and his interpersonal, social and vocational capacities were severely impaired. The examiner further stated that the veteran was not employable, and that he might well be in need of re-hospitalization. By a rating decision in January 1991 the RO found the veteran to be permanently and totally disabled, and assigned an effective date of December 8, 1989, for an award of VA pension benefits. In a statement received in May 1991, the veteran first indicated that he felt that he "should be paid [pension benefits] back from April 13, 1973 [the date] I was released from the military." This is the earliest communication from him which can be construed as a specific claim for retroactive pension benefits. The veteran has not contended otherwise. Another personal hearing was conducted at the RO in June 1993, regarding his appeal from the RO's denial of his claim for retroactive pension. At that hearing the veteran testified as to why he believed that his pension benefits should be retroactive to service. He indicated that when he was released from service he didn’t know he could apply for VA benefits, and that when he learned that he could apply, he did so. he veteran stated that he first learned of the availability of VA benefits in 1989 or 1990. He also reported that he continued to receive outpatient treatment every two weeks. Additional private clinical records dated from March 1991 to August 1993 are also of record which document the veteran’s continued psychiatric treatment. Analysis The effective date of an award of pension will be the date of receipt of the claim, unless, within one year of the date the veteran became permanently and totally disabled, he files a claim for a retroactive award and establishes that a physical or mental disability was so incapacitating that it prevented him from filing a claim for at least the first thirty days immediately following the date on which he became permanently and totally disabled; in the latter case, the date used will be the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 C.F.R. §§ 3.400(b)(1)(ii). In addition, the provisions of 38 C.F.R. § 3.151(b) state that a pension award may not be effective prior to the date of receipt of the pension claim unless the veteran specifically claims entitlement to retroactive benefits, but the claim for retroactive benefits must be received by VA within one year from the date on which the veteran became permanently and totally disabled. The note received from the veteran in December 1989 was clearly very vague regarding any possible claim for VA benefits. However, in light of his prior claims for VA pension benefits and considering the severity of his psychiatric disability, the RO evidently "liberally construed" that note as an application to reopen his claim for pension. While the RO eventually granted the veteran pension benefits in a rating decision in January 1991, effective from the date of receipt of the December 1989 note, it was not until May 1991 that the veteran expressed a desire to have the pension benefits made retroactive to the date of his separation from service. The provisions of 38 C.F.R. §§ 3.151 and 3.400(b)(1)(ii)(B) are very clear that, unless the veteran files a specific claim for retroactive pension benefits within one year of the date he became permanently and totally disabled, the earliest date that may be assigned for such an award is the date of receipt of the claim. Here, although the record shows that the veteran became permanently and totally disabled in July 1989, and while he filed his claim for pension benefits in December 1989, no claim for retroactive pension benefits was made until May 1991, well after the end of the one year period allowed. Therefore, the regulations require the use of the date of receipt of the claim for pension benefits as the effective date for the award. That date was December 8, 1989, when the veteran filed a reopened claim following the Board's final adjudication of an earlier pension claim in January 1988. See 38 C.F.R. § 3.160(d)(e). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. Accordingly, the Board concludes that December 8, 1989, the effective date assigned by the RO for the award of VA pension benefits, is the proper effective date of the award. ORDER An effective date prior to December 8, 1989, for assignment of a permanent and total disability rating for pension purposes is denied. D. C. SPICKLER Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals.