BVA9502253 DOCKET NO. 93-07 790 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an effective date earlier than May 7, 1991, for the grant of service connection for schizophrenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from March 1980 to June 1980 and from October 1982 to June 1984. In a January 1986 rating decision, the RO denied the appellant's claim of entitlement to service connection for schizophrenia on the basis that it had been initially manifested more than one year after the appellant's separation from service. A letter notifying the veteran of this denial and apprising him of his appellate rights was issued February 5, 1986. Following issuance of a statement of the case in March 1986 and a supplemental statement of the case in September 1986, the appellant submitted a substantive appeal in October 1987, which was more than one year after notification of the January 1986 rating decision. Because the appellant's attempt to perfect his appeal to the Board of Veterans' Appeals (Board) was not timely filed, the January 1986 rating decision became final, as of February 5, 1987. This appeal comes before the Board from a November 1992 rating decision by the Department of Veterans Affairs (VA) Togus, Maine, Regional Office (RO), which denied entitlement to an effective date earlier than May 7, 1991, for the grant of service connection for schizophrenia. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the RO's January 1986 rating decision, denying entitlement to service connection for schizophrenia, was clearly and unmistakably erroneous because the evidence of record at that time, or which would have been of record had the VA performed it statutory duty to assist then, established that his schizophrenia had been demonstrated in service. The appellant's representative argues that the appellant's schizophrenia was misdiagnosed as alcoholism in service, which the RO should have recognized in January 1986, and that this fact, along with the VA's concession that the appellant is service connected for this condition, should entitle him to a retroactive effective date to the original date of application. 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 appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim that the effective date for the grant of service connection for his schizophrenia should be earlier than May 7, 1991. FINDINGS OF FACT 1. In a January 1986 rating decision, the RO denied service connection for schizophrenia, and the appellant did not timely perfect an appeal of that decision to the Board after receiving notification of the decision in February 1986. 2. On May 7, 1991, the appellant submitted evidence to reopen a claim of entitlement to service connection for schizophrenia. 3. In an April 1992 appellate decision, the Board found that the appellant had submitted new and material evidence since the January 1986 rating decision became final, and determined that the entire evidentiary record established that service connection was warranted for schizophrenia. 4. In a June 1992 rating decision, the RO established May 7, 1991, the date of receipt of the reopened claim, as the effective date of the grant of service connection for schizophrenia. 5. The January 1986 rating decision that denied entitlement to service connection for schizophrenia was supported by the evidence then of record. CONCLUSION OF LAW An effective date prior to May 7, 1991, for the grant of service connection for schizophrenia is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107, 5108, 5110(a), 7105 (West 1991); 38 C.F.R. §§ 3.156, 3.307, 3.309, 3.400(q)(1)(ii) and (r), 20.302(a), 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). Additionally, where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Review of the claims file reveals that the appellant's original claim for entitlement to service connection for schizophrenia was denied by the RO in a January 1986 rating decision, of which the appellant was notified in February 1986. The evidence considered by that rating decision included the appellant's service medical records, that did not show any complaint or finding of a psychiatric disorder, and a report of hospitalization at Kennebec Valley Medical Center from August 2 to August 30, 1985, for treatment of the appellant's psychiatric symptomatology, which were diagnosed as chronic paranoid schizophrenia. The treating psychiatrist during the appellant's August 1985 hospitalization, L. B. Mutty, M.D., opined that the appellant's illness quite likely predated his discharge from military service and that his illness, to a degree, may have been masked or covered by his alcoholic behavior. The RO, in its January 1986 rating decision, weighed the lack of medical evidence showing the presence of any psychiatric disease during service and for the first year after service against the conjecture of the private psychiatrist in August 1985 that the appellant's schizophrenia began in service. The RO found that the evidence did not support a finding that the schizophrenia was of service origin. After a statement of the case was issued to the appellant in March 1986, additional evidence was received by the RO. This new evidence, in the form of a statement from the appellant's mother, a statement from Dr. Mutty that reiterated his opinion that the appellant's schizophrenia existed prior to his discharge from service and that the underlying illness was disguised by his alcoholism, and medical records showing the appellant's participation in an alcohol dependence program for his chronic alcoholism from March 6 to March 30, 1984, was considered by the RO in a September 1986 supplemental statement of the case, but service connection for schizophrenia remained denied. The appellant's substantive appeal (VA Form 1-9) was received by the VA in October 1987, more than one year after he had received notification of the original denial of his claim, and he was informed in a November 1987 VA letter that his attempt to perfect his appeal was not timely, thereby causing the January 1986 rating decision to become final. Except as otherwise provided, when a claim becomes final after an unappealed rating decision, the claim may not be thereafter reopened. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1994). Should new and material evidence be presented or secured with respect to a claim that has been disallowed, the claim shall be reopened and reviewed as to all of the evidence of record. 38 U.S.C.A. § 5108 (West 1991). New and material evidence is evidence not previously submitted through agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). In an April 1992 appellate decision, the Board concluded that the evidence submitted since the January 1986 rating decision was new and material, thereby permitting a reopening of the appellant's claim of entitlement to service connection for schizophrenia. The Board went on in that appellate decision to find that the evidence, including additional medical opinions, when viewed in its entirety, established that service connection was warranted for schizophrenia. A subsequent June 1992 rating decision implemented the April 1992 appellate decision and established the effective date for the grant of service connection for schizophrenia as May 7, 1991, the date of receipt of the appellant's reopened claim. The effective date of an 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.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(q)(1)(ii) and (r) (1994). The evidence in this case shows that the January 1986 rating decision became final in February 1987, and the appellant next submitted a request to reopen the claim on May 7, 1991. Because the appellant's May 7, 1991, claim was reopened by the Board in its April 1992 appellate decision, the date of receipt of the claim (May 7, 1991) became the earliest effective date for which the grant of service connection for schizophrenia could be assigned under the applicable laws and regulations. Although the appellant has alleged that the Togus, Maine, Regional Office committed clear and unmistakable error in its January 1986 rating decision by not granting service connection for his psychiatric disorder, the Board must determine whether the appellant has raised a valid claim of clear and unmistakable error in the January 1986 rating decision. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply. 38 C.F.R. § 3.105(a) (1994). The United States Court of Veterans Appeals (Court) has held that for there to be a valid claim of "clear and unmistakable error," there must have been an error in the prior adjudication of the claim, such that either the correct facts or applicable law, in effect at the time of the prior adjudication, was incorrectly applied. The Court stated that the claimant must aver more than just his disagreement with the factual determination rendered by the prior adjudicator. Russell v. Principi, 3 Vet.App. 310, 313 (1992) (consolidated with Collins v. Principi, No. 90-416 (en banc)). See also Oppenheimer v. Derwinski, 1 Vet.App. 370 (1991), and Kronberg v. Brown, 4 Vet.App. 399 (1993). The Court noted in Fugo v. Brown, 6 Vet.App. 40, 44 (1993) that it was difficult to see how failure in the "duty to assist" could ever be clear and unmistakable error. In reviewing the evidence that was of record and considered by the RO prior to the January 1986 rating decision becoming final, the Board finds that the RO's decision at that time to deny service connection for schizophrenia was not unreasonable, given that the initial evidence of any psychiatric disorder was dated more than one year after the appellant's separation from service and that the opinion by Dr. Mutty in August 1985 was speculation as to what may have been the case during service and was not supported by either a review of the service medical records or any medical reports contemporaneous with the veteran's symptoms manifested during service. While the appellant alleges clear and unmistakable error in the January 1986 rating decision, he argues misinterpretation of the facts by the regional office at that time. His claim for a retroactive effective date for the grant of service connection for his schizophrenia falls short of alleging the kind of error that could be considered clear and unmistakable error under the provisions of 38 C.F.R. § 3.105(a) (1994) and Russell because his attack on the January 1986 rating decision is essentially an attempt to obtain a reweighing and reevaluation of the evidence that was before the Togus, Maine, Regional Office prior to its January 1986 rating decision becoming final. Because the record in the present case demonstrates that the appellant is really challenging the evaluation by the regional office of the evidence of record in connection with the January 1986 rating decision, the Board finds that the appellant has not raised a valid claim of clear and unmistakable error. See also Fugo, referring to Russell, "to claim CUE (clear and unmistakable error) on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Because the evidence does not demonstrate that the appellant's reopened claim of entitlement to service connection for schizophrenia was received before May 7, 1991, or that the January 1986 rating decision was clearly and unmistakably erroneous, the Board is unable to identify a basis to grant an effective date earlier than May 7, 1991, for the grant of service connection for schizophrenia. ORDER An effective date earlier that May 7, 1991, for the grant of service connection for schizophrenia is denied. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.