Citation Nr: 0006666 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 95-05 713A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an effective date earlier than December 15, 1989, for the award of a 100 percent rating for schizophrenia. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and friend. ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from June 1967 to September 1971. During the appellate period, the veteran was furnished statements of the case on the additional issues of entitlement to service connection for nicotine dependence and for pulmonary conditions resulting from agent orange exposure or due to his smoking during service. Timely substantive appeals were not filed with respect to these issues and they are not properly before the Board at this time. FINDINGS OF FACT 1. The veteran has been in receipt of a 70 percent rating for his schizophrenia from the day following service discharge in September 1971. 2. Rating actions in 1976, 1979, 1982 and 1983 maintained the veteran's schedular rating for schizophrenia at 70 percent. No appeal was taken from these rating actions. 3. A rating action in September 1987 confirmed and continued the veteran's 70 percent rating for his schizophrenia and also found that the veteran was not unemployable due to his service-connected disabilities. 4. The veteran disagreed with this determination and was furnished a statement of the case; however, he did not file a timely substantive appeal and the determination became final. 5. He next filed a claim for increase for schizophrenia in August 1990. 6. Received in conjunction with this claim were VA medical records beginning in 1986, including an outpatient treatment entry, dated December 15, 1989, which showed for the first time an increase in psychiatric symptomatology beyond the 70 percent level. 7. A rating action in September 1994, awarded a 100 percent rating for schizophrenia from December 15, 1989, the date increased symptomatology was said to be first shown. CONCLUSION OF LAW An effective date earlier than December 15, 1989, for the award of a 100 percent rating for schizophrenia, is not warranted. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.155, 3.160, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim is well-grounded pursuant to 38 U.S.C.A. § 5107 in that his claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to that claim. After reviewing the record, the Board is satisfied that all relevant, available evidence is on file and the statutory duty to assist the appellant in the development of evidence relevant to his claim has been satisfied. 38 U.S.C.A. § 5107. Factual Background. The essential facts in this case are set out as findings of fact above. Additionally, the veteran's schizophrenia has been evaluated under the provisions of 38 C.F.R. Part 4, Diagnostic Code (DC) 9203. Pursuant to the provisions of DC 9203, as in effect during the time period in question, a 100 percent evaluation was warranted when a veteran's paranoid schizophrenia was manifested by active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. As noted above, the record shows that following the September 1987 rating decision denying an increased rating, the veteran did not perfect an appeal and he did not file another claim for increase until August 1990. Thereafter, VA treatment records beginning in 1986 and Social Security Administration (SSA) records were obtained in conjunction with this claim. The SSA records reflect that the veteran was found to be entitled to a period of disability beginning in August 1985 and that the primary diagnosis was severe schizophrenia. The VA treatment records show that the first reported increase in psychiatric symptomatology supportive of a 100 percent rating is contained in treatment records dated, December 15, 1989. The RO subsequently awarded benefits at the 100 percent rate for schizophrenia from that December 1989 date. At the hearing on appeal in February 1996, the veteran disagreed with the December 1989 effective date assigned arguing that his award should go back to his period of service, since he had the same psychiatric symptoms at that time and over the years. He also argued that the medication he was taking for his schizophrenia in 1971 prevented him from initiating an appeal at that time. He also contended that over the years his medication prevented him from maintaining employment. Criteria. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1) (1999). Under 38 U.S.C.A. § 5110(b)(2), the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. See also 38 C.F.R. § 3.400(o)(2). "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Under 38 C.F.R. § 3.155, the submission of certain medical records may constitute an "informal claim" for an increase in disability compensation. In addition, 38 C.F.R. § 3.157 specifies that where, as here, a claimant's formal claim for compensation already has been allowed, receipt of, inter alia, an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim filed on the date of the examination or hospital admission. Pursuant to 38 U.S.C.A. § 7105(a), a request for appellate review by the Board of a decision by the RO is initiated by a Notice of Disagreement and completed by a Substantive Appeal after a Statement of the Case has been furnished. 38 C.F.R. § 20.200. A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.202. The effective date of an award based on a claim reopened after final adjudication (the September 1987 rating action) shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400. Analysis. In the instant case, the Board notes that the veteran has contended that his 100 percent disability rating for schizophrenia should be retroactive to when he was released from service. However, a review of the record shows that the RO assigned a 70 percent rating for schizophrenia in 1971 and thereafter denied a higher rating in a series of rating actions ending with the rating action in September 1987 and these decisions are now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Under 38 C.F.R. § 3.105(a), "[p]revious determinations which are final and binding, including decisions of ... degree of disability ... will be accepted as correct in the absence of clear and unmistakable error." To assert a valid claim of clear and unmistakable error, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated; he must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error. The mere assertion of clear and unmistakable error is not sufficient to reasonably raise the issue. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, Fugo v. Brown, 6 Vet. App. 162 (1994). The Board is of the opinion that the veteran has not alleged clear and unmistakable error with respect to any prior rating decision. In this regard, the Board has considered the veteran's contention that his failure to disagree with the 1971 rating action was due to the medication he was taking for his schizophrenia; however, the veteran has not provided any competent medical evidence to support this claim and such is not otherwise shown in the record. As a layperson, the veteran is not competent to render such opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran was advised of the rating actions from 1971 to September 1987 providing a 70 percent rating for schizophrenia. The record shows that an appeal was not perfected by the veteran with respect to any of these rating actions. These rating actions are final as to the evidence of record at the time of the September 1987 rating decision. Generally, under the applicable statutory and regulatory criteria, the date of receipt of the veteran's claim in August 1990 would be the proper effective date for the award of the increased rating if the veteran's disability were shown to warrant an increased rating at that time. However, the applicable statutory and regulatory provisions, fairly construed, require that the RO and the Board look to all communications in the file that may be interpreted as applications or claims -- formal and informal -- for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which", within the year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a). In the present case, after the RO notified the veteran of the September 1987 rating decision, the veteran filed a notice of disagreement and was furnished a statement of the case, but did not file a substantive appeal and that determination became final. The next pertinent correspondence from the veteran was received in August 1990 and contains the veteran's request for an increased rating for his service- connected disability. VA medical records beginning in 1986 were obtained by the RO and an outpatient treatment record dated December 15, 1989, documented an increase in severity of the veteran's schizophrenia. The RO construed this outpatient treatment record as a claim for increase for his service-connected psychiatric disorder. As noted above, 38 C.F.R. § 3.157(b) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted. This section does not require the veteran to identify the report as a claim or to identify the benefits sought. The RO held that the veteran submitted an informal claim for an increased rating for his service-connected psychiatric disorder within the purview of 38 C.F.R. §§ 3.1(p), 3.155(a), and 3.157(b)(1) on December 15, 1989, by virtue of the VA medical report of that date. Since the veteran filed a formal claim for increase within the one-year filing period for a formal application, the December 15, 1989, date of the veteran's "informal claim" must be accepted, as a matter of law, as the date of his "claim" or "application" for purposes of determining an effective date for the increased rating. See 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §§ 3.1(p), 3.400(o)(2), 3.155(a), and 3.157(b)(1). Given the facts in this case, the December 15, 1989, treatment report represents the date of claim as well as the date entitlement arose inasmuch as this record constitutes the first indication of increase in severity of the veteran's schizophrenia warranting a higher rating. The record from the time of the final September 1987 rating action to December 15, 1989, is devoid of findings reflecting an increase in the severity of the veteran's psychiatric disorder. Based on this application of the law to the facts in this case, the Board finds no legal basis for the award of an effective date earlier than that assigned by the RO. As the evidentiary record does not show the presence of increased psychiatric symptomatology prior to December 15, 1989, this represents not only the date of claim, but also the date entitlement arose and is the proper effective date for the award of the increased rating. The December 1989 date is the first date on which it was factually ascertainable that there was an increase in the veteran's psychiatric symptomatology warranting the increased rating awarded by the RO. For the foregoing reasons, the Board concludes that the record does not support a grant of entitlement to an effective date, prior to December 15, 1989, for assignment of a 100 percent evaluation for schizophrenia. ORDER An effective date earlier than December 15, 1989, for the award of a 100 percent rating for schizophrenia is denied. Gary L. Gick Member, Board of Veterans' Appeals