93 Decision Citation: BVA 93-18133 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-10 085 ) DATE ) ) ) THE ISSUE Entitlement to an effective date prior to May 10, 1984, for the grant of service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from May 1974 to July 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating action of the Jackson, Mississippi, Regional Office (RO), which granted service connection for paranoid schizophrenia and assigned a 50 percent rating from May 10, 1984, and a 100 percent schedular rating from May 25, 1988. In December 1991, a notice of disagreement was received with respect to the effective date of the grant of service connection. A statement of the case was issued in January 1992. In February 1992, a substantive appeal was received wherein the veteran also raised the issue of entitlement to an evaluation in excess of 50 percent for paranoid schizophrenia prior to May 25, 1988. A supplemental statement of the case on both issues was issued subsequently that month, but the veteran failed to file a timely substantive appeal with respect to the issue of entitlement to an evaluation in excess of 50 percent for paranoid schizophrenia prior to May 25, 1988. The veteran has been represented throughout his appeal by the Disabled American Veterans, which organization most recently submitted written argument to the Board on his behalf in November 1992. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that he is entitled to an effective date prior to May 10, 1984, for the grant of service connection for paranoid schizophrenia, in that a psychosis had its onset in service. He asserts that the January 1981 Board decision which denied restoration of service connection for schizophrenia was clearly and unmistakably erroneous, and requests reconsideration of that decision. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for an effective date prior to May 10, 1984, for the grant of service connection for paranoid schizophrenia is well grounded. FINDINGS OF FACT 1. By decision of January 1981, the Board denied restoration of service connection for schizophrenia. 2. In January 1982, the United States Department of Veterans Affairs (VA) received the veteran's application to reopen his claim for service connection for an acquired psychiatric disorder. 3. By rating action of March 1982, the RO denied service connection for an acquired psychiatric disorder; that decision was not timely appealed, and there has been no allegation of error therein. 4. On May 10, 1984, the VA received the veteran's application to reopen his claim for service connection for an acquired psychiatric disorder. 5. By decision of December 1990, the Board granted service connection for an acquired psychiatric disorder, schizophrenia, on the basis of new and material evidence. 6. Pursuant to the December 1990 Board decision, the RO by rating action of July 1991 granted service connection for paranoid schizophrenia, effective May 10, 1984. 7. In March 1993, the Board denied the veteran's motion for reconsideration of the January 1981 Board decision which denied restoration of service connection for schizophrenia. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim with respect to the issue of entitlement to an effective date prior to May 10, 1984, for the grant of service connection for paranoid schizophrenia. 38 U.S.C.A. §§ 5107, 7103, 7104(b), 7105 (West 1991); 38 C.F.R. §§ 3.105(a), 3.400, 20.1000(a), 20.1105 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered in this case is whether the appellant has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, we find that his claim is not well grounded. The relevant facts are not in dispute and may be briefly described. By rating action of October 1975, the RO granted service connection for paranoid schizophrenia on the basis of inservice incurrence. By rating action of November 1977, the RO severed service connection for schizophrenia on the grounds that the initial grant of service connection was clearly and unmistakably erroneous. By decision of January 1981, the Board denied restoration of service connection for schizophrenia. By rating action of March 1982, the RO denied service connection for an acquired psychiatric disorder on the grounds that new and material evidence had not been submitted to reopen the claim. The veteran was notified of the denial and of his appellate rights by letter of April 1982, but he did not file a timely appeal therefrom. By decision of December 1990, the Board granted service connection for schizophrenia on the basis of new and material evidence which showed that the veteran's inservice psychiatric symptoms were the first manifestations of schizophrenia. Matters which are in dispute will be discussed below. The applicable criteria provide that, when a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered. 38 U.S.C.A. § 7104(b). When a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, whether it provides a new factual basis for allowing the claim. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1105. A decision of the Board is final, except that the Board may correct an obvious error in the record. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1000(a). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). The effective date of an award of disability compensation based on an original claim for direct service connection shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). The effective date of awards based on new and material evidence received after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). The effective date of an award based on error under the provisions of 38 C.F.R. § 3.105 will be the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400(k). The effective date of an award based on a reopened claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). We find no real conflict in the evidence on those points. In this case, the RO in July 1991 granted service connection for paranoid schizophrenia with an assigned effective date of May 10, 1984, the date the VA received the veteran's application to reopen his claim for service connection. The Board had previously entered a final appellate decision denying restoration of service connection for schizophrenia in January 1981, and the denial of service connection was confirmed by rating action of March 1982. If an earlier effective date for the grant of service connection is to be assigned, it would have to be shown that the January 1981 Board decision or the subsequent March 1982 rating action was clearly and unmistakably erroneous. 38 C.F.R. §§ 3.105, 3.400. Clear and unmistakable error in the January 1981 Board decision was contended, and reconsideration of that decision was requested. However, by letter of March 1993, the Board denied the request for reconsideration of the January 1981 Board decision on the grounds that the arguments advanced on behalf of the veteran failed to establish that, in 1981, the veteran was denied due process of law, that the available evidence was misstated, that incorrect law was used to resolve the issue on appeal, or that the law was misapplied. The Board concluded that the January 1981 Board decision denying restoration of service connection for schizophrenia was factually and legally correct. In denying the veteran's motion for reconsideration of the January 1981 Board decision, the Board in March 1993 in effect concluded that the January 1981 Board decision was not clearly and unmistakably erroneous. The veteran has not contended that the subsequent March 1982 rating action confirming the denial of service connection was clearly and unmistakably erroneous. A finding of clear and unmistakable error in the January 1981 Board decision or the March 1982 rating action is the only basis upon which a claim for entitlement to an effective date prior to May 10, 1984, for the grant of service connection for paranoid schizophrenia may be considered. 38 C.F.R. §§ 3.105(a), 3.400. Therefore, it must be concluded that the veteran has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded and it must be denied. 38 U.S.C.A. §§ 5107(a), 7103, 7104(b), 7105; 38 C.F.R. §§ 3.105(a), 3.400, 20.1000(a), 20.1105. ORDER An effective date prior to May 10, 1984, for the grant of service connection for paranoid schizophrenia is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * D. W. DATLOW, M. D. (Member Temporarily Absent) C. W. SYMANSKI *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.