Citation Nr: 0004238 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 97-02 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an effective date for a total rating for compensation purposes based upon individual unemployability prior to December 14, 1988. 2. Entitlement to an effective date earlier than May 30, 1996 for the award of Dependents' Educational Assistance under Chapter 35, United States Code. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Stanley Grabia, Associate Counsel INTRODUCTION The veteran had active military service from July 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) of San Juan, Puerto Rico. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran's claim. 2. Entitlement to an effective date, of December 14, 1988, for a total rating for compensation purposed based upon individual unemployability was granted by a Board decision in April 1994. 3. In 1996 and 1997, the veteran submitted evidence of psychiatric symptomatology in 1976 and 1977. 4. Prior to May 30, 1996, there was no competent evidence that the total disability, due to the service-connected psychiatric disorder, would be permanent. CONCLUSIONS OF LAW 1. The veteran has not presented a legal basis for an effective date earlier than December 14, 1988, for a total rating for compensation purposed based upon individual unemployability. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(q)(1)(ii) (1999). 2. The claim for an effective date earlier than May 30, 1996 for payment of Chapter 35 Dependents' Educational Assistance benefits is not well grounded. 38 U.S.C.A. §§ 5107, 5110, 3512, 3513 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.400, 21.3041 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Entitlement to an effective date for a total rating for compensation purposes based upon individual unemployability prior to December 14, 1988. Entitlement to an effective date, of December 14, 1988, for a total rating for compensation purposed based upon individual unemployability was granted by a Board decision in April 1994. Decisions of the Board are final. 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 20.1100 (1999). The veteran's request for reconsideration was received in October 1995, and denied by the Board in April 1996. Consequently, the Board's April 1994 determination is final. 38 U.S.C.A. § 7104. The veteran has not made a motion for the Board to reconsider its decision based on clear and unmistakable error (CUE). The Board previously asked the veteran to clarify his pleadings and he asserted that there was CUE in the prior local VARO ratings. When a decision of the RO is affirmed by the Board, such decision is subsumed by the decision of the Board and may not be challenged for CUE. 38 C.F.R. §§ 3.105, 20.1104 (1999). Thus, there is no legal basis to challenge the underlying RO decisions. The Board construes claims liberally and has considered that the veteran might want to make a motion to the Board to revise the April 1994 decision on the basis of CUE. Such a motion may be made once and requires specific pleadings. So, it could be detrimental to the veteran to construe his current presentation as a motion for CUE. On the other hand, not construing his current presentation as a motion for CUE would not be detrimental to the veteran. This is because for the usual claim, construing additional claims as part of an earlier claim would result in an earlier effective date. However, in claims of CUE, the effective date would be as though the correct decision had been made at the time of the erroneous decision, no matter when the CUE claim is made. Therefore, it could be to the veteran's detriment, with no benefit, to construe his current claim as a motion to revise the Board's April 1994 decision on the basis of CUE. The veteran should read the Appeals Notice at the end of this decision, relating to CUE motions. Once a final decision is made, it can be reopened on the basis of new and material evidence. 38 U.S.C.A. § 5108 (West 1991). If the new and material evidence results in a grant, the effective date of a claim reopened after final adjudication can not be earlier than the date of receipt of the application to reopen the claim or the date entitlement arose, which ever is later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(q)(1)(ii) (1999). In 1996 and 1997, the veteran submitted reports referring to psychiatric symptomatology in 1976 and 1977. Since this information was submitted in 1996 and 1997, under the law and regulations on effective dates, it does not form a basis for a total rating prior to December 1988. 2. Entitlement to an effective date earlier than May 30, 1996 for the award of Dependents' Educational Assistance under Chapter 35, United States Code. This claim is not well grounded. The benefit sought requires that the veteran be totally disabled by a service-connected disability and that the totality of the disability be permanent. There are certain disabilities which are permanent total disabilities by regulation. 38 C.F.R. § 4.15 (1999). None of those disabilities are involved here. Other disabilities are of such a patent nature that the average lay person could reasonably surmise that a total disability would be permanent. However, for most disorders, the likelihood that they will respond to treatment, and someday be less than total, requires the opinion of a trained medical professional. The veteran argues that his disability was shown to be permanently totally disabling prior to May 30, 1996. However, there is no evidence from a competent medical source that the service-connected total disability could reasonably be expected to be permanently disabling prior to May 30, 1996. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, in this case the permanency of the disability, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation (See 38 C.F.R. §§ 4.2, 4.41), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, all pertinent evidence in the appeal period will be considered. Unless specifically provided otherwise, the effective date of an award for dependency and indemnity compensation, including entitlement to Chapter 35 educational benefits, will be the date of receipt of the claim, or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400. The effective date may also be the earliest date as of which it is factually ascertainable that the veteran has been found to be totally and permanently disabled for compensation purposed based upon individual unemployability, if the claim is received within one year from the date that the veteran has been found to be totally and permanently disabled. 38 C.F.R. § 3.400. A report of hospitalization or examination, if otherwise qualifying, may under certain circumstances be construed as an "informal" claim for a permanent total rating. 38 C.F.R. § 3.157 (1999). In order to receive Chapter 35 educational benefits, a claimant who has reached majority must file an application as prescribed by the Secretary. 38 U.S.C.A. § 3513 (West 1991 & Supp. 1999). Under the controlling legal criteria, the beginning date of eligibility for payment of Chapter 35 educational benefits will be the effective date of the total rating, permanent in nature, or the date of notification to the veteran from whom the child derives eligibility, whichever is more advantageous to the eligible child. 38 U.S.C.A. § 3512 (West 1991 & Supp. 1999); 38 C.F.R. § 21.3041 (1999). The Board notes that the evidence of file would indicate that by this claim, the veteran is specifically attempting to raise the issue of eligibility for payment of Chapter 35 educational benefits for his stepdaughter. The most current application of file, was received in July 1995, prior to the effective date of eligibility, and was denied by the RO in November 1995, as eligibility had not yet been established. In order to be considered for payment of Chapter 35 educational benefits, the veteran's child must file a new claim. In a VA examination on May 30, 1996, the veteran was uncooperative and refused to give the examiner any appropriate information. Since it was impossible to obtain an organized history from the veteran, the examination could not be carried out. Subsequently, the veteran was hospitalized from July 29, 1996 to August 8, 1996, for observation and evaluation. During his stay he had episodes in which he saw green lizards, heard voices, and had sleeping problems and anxiety episodes. He spent most of his time in his room, was not spontaneous, but interacted with the staff and peers in a polite manner. When discharged, he was tranquil, in full contact with reality, not hallucinating, and with no evidence of suicidal or homicidal ideas. The examiner opined that the veteran's condition deteriorated from a neuropsychiatric point of view. He was not able to handle funds, and was not able to work. His diagnosis was chronic schizophrenia, undifferentiated type, with a GAF of 60. The August 1996 rating action, which found the veteran to be permanently and totally disabled, also determined that basic eligibility for Dependents' Educational Assistance under Chapter 35, USCA was established from the date of the May 30, 1996 VA examination. The pertinent evidence reviewed by the RO at that time was contained in the examination report and subsequent VA hospitalization records from July to August 1996 for psychiatric observation and evaluation. It was the determination of the RO that the date of the examination was the first date on which permanent and total disability was shown. In a notice of disagreement dated in September 1996, the veteran disagreed with the May 30, 1996 effective date for a total and permanent disability rating, and eligibility for dependent's educational assistance. It was essentially contended that the veteran had continuously appealed the issue, particularly of dependent's educational assistance for several years because his child was in college. In addition as he was rated 100 percent disabled for 5 consecutive years, he claimed, in essence, that he should have been granted total and permanent disability for that entire period. Evidence received subsequent to April 1994, includes September 1996, and January 1997 medical statements by Raul Correa Grau, M.D., reporting that he treated the veteran since April 1991, and noting current treatment: a January 1997 letter from the Social Security Administration noting that the veteran became entitled to SSA benefits since August 1977; and, VA examination and hospitalization records from May 1996 through August 1996. The evidence does not contain a competent expert opinion that the veteran became permanently and totally disabled prior to May 30, 1996. In this regard, the Board notes that the appellant is not qualified to make that medical connection. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reviewing the evidence of record, however, it is clear that the permanent nature of the veteran's total psychiatric pathology was first demonstrated by the May through August 1996 VA medical evidence. There is no evidence from a competent medical source which shows that the veteran's total disability was permanent, prior to May 30, 1996. In the absence of objective evidence showing that the criteria for a permanent and total rating for a psychiatric disorder, including paranoid schizophrenia were met prior to May 30, 1996, the Board concludes that "entitlement" to such a rating was not shown before that time, and that an effective date earlier than May 30, 1996, is therefore precluded under the provisions of 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. ORDER An effective date for a total rating for compensation purposes based upon individual unemployability prior to December 14, 1988, is denied. An effective date earlier than May 30, 1996 for the award of Dependents' Educational Assistance under Chapter 35, United States Code is denied CLIFFORD R. OLSON Acting Member, Board of Veterans' Appeals