Citation Nr: 0811529	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  06-11 176A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Entitlement to an effective date earlier than March 9, 1989, 
for the award of a 100 percent disability evaluation for 
psychotic disorder, not otherwise specified (formerly 
characterized as psychophysiological musculoskeletal reaction 
with history of back pain) is denied.


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans 
Services


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Scott Shoreman, Associate Counsel

INTRODUCTION

The veteran had active service from September 1972 to March 
1973 and August 1973 to March 1974.

This matter comes before the Board of Veterans' Appeals 
(Board) from a May 2005 rating decision by the above 
Department of Veterans Affairs (VA) Regional Office (RO).  
The RO assigned the veteran a 30 percent rating in a March 
1978 rating decision, effective from March 12, 1976.  In a 
January 1997 rating decision the RO assigned a 100 percent 
rating effective March 9, 1989, the date on which the veteran 
had filed a claim for an increased rating.

The veteran testified at a Travel Board hearing before the 
undersigned Veterans Law Judge at the RO in January 2008.  A 
transcript is of record.


FINDINGS OF FACT

There is no evidence of record demonstrating that the veteran 
met the criteria for a 100 percent evaluation for a psychotic 
disorder, not otherwise specified (formerly characterized as 
psychophysiological musculoskeletal reaction with history of 
back pain) prior to March 9, 1989.

CONCLUSION OF LAW

The criteria for an effective date prior to March 9, 1989, 
for a 100 percent evaluation for psychotic disorder, not 
otherwise specified (formerly characterized as 
psychophysiological musculoskeletal reaction with history of 
back pain) have not been met.  38 U.S.C.A. §§ 5103(a), 5103A, 
5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 
3.159, 3.400(b)(2) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007).

VA has no duty of notice or assistance in this case, since it 
is the law, and not the facts, which is dispositive of the 
case.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  
See also VAOPGCPREC 5-2004 (June 23, 2004), which stated that 
VA is not required to provide notice of the information and 
evidence necessary to substantiate a claim where that claim 
cannot be substantiated because there is no legal basis for 
the claim or because undisputed facts render the claim 
ineligible for the claimed benefit.

II.  Background and Analysis

An appeal consists of a timely filed Notice of Disagreement 
(NOD) in writing, and, after a Statement of the Case (SOC) 
has been furnished, a timely filed substantive appeal.  38 
C.F.R. § 20.200.  Thus, an appeal to a rating action is 
initiated by submission of an NOD within one year after 
issuance of the rating action being appealed.  38 C.F.R. § 
20.302.  The law requires that a communication from a 
claimant contain certain information to constitute an NOD.  
While special wording is not required, the NOD must be in 
terms which can be reasonably construed as disagreement with 
that determination and a desire for appellate review. 38 
C.F.R. § 20.201.  Additional basic requirements for a timely 
appeal are that it must be filed within 60 days after the 
mailing of the SOC or within the remainder of the one-year 
period from the date of mailing of the notice of the 
determination being appealed, whichever is later.  The issue 
of timeliness may also be appealed.  See 38 U.S.C.A. § 7105.




On December 12, 2004, the veteran submitted an NOD, which was 
untimely to initiate an appeal of the RO's January 1997 
denial of an effective date earlier than March 9, 1989, for a 
100 percent evaluation for psychotic disorder, not otherwise 
specified, competent.  See 38 C.F.R. § 20.302.  However, 
rather than simply closing the case, the RO accepted the 
attempted, untimely NOD as a claim for an effective date 
earlier than March 9, 1989, for a 100 percent evaluation.

The assignment of effective dates of awards is generally 
governed by 38 U.S.C.A. § 5110; and 38 C.F.R. § 3.400.  
Unless specifically provided otherwise, the effective date of 
an award based on an original claim, a claim reopened after 
final adjudication, or a claim for increase, of compensation, 
dependency and indemnity compensation, or pension, "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(a).  The implementing regulation clarifies 
this to mean, except as otherwise provided, the effective 
date of an evaluation and award of pension, compensation, or 
dependency and indemnity 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 C.F.R. § 
3.400.

If a decision by the RO goes unappealed, it is final.  A 
final and binding RO decision shall not be subject to 
revision on the same factual basis except by duly constituted 
appellate authorities, or on the basis of clear and 
unmistakable error (CUE), as provided in 38 C.F.R. § 3.105. 
38 C.F.R. § 3.104(a).  If a claimant wishes to reasonably 
raise CUE, "there must be some degree of specificity as to 
what the alleged error is and, unless it is the kind of error 
. . . that, if true, would be clear and unmistakable error on 
its face, persuasive reasons must be given as to why the 
result would have been manifestly different but for the 
alleged error."  Fugo v. Brown, 6 Vet. App. 40, 43-44 
(1993).

Neither the veteran nor his representative has raised a 
contention that the RO committed clear and unmistakable error 
(CUE) in the January 1997 rating action which awarded the 100 
percent evaluation effective March 9, 1989.  In the instant 
case, because the rating action awarding the March 9, 1989, 
effective date become final, the veteran could only obtain an 
earlier effective date by showing that the decision was a 
product of CUE.  As noted above, such a claim has not been 
made.  Rather, the veteran and his representative have argued 
that the Board should now award the earliest date upon which 
it was factually ascertainable that an increase in disability 
had occurred.  See 38 C.F.R. § 3.400(o)(2).

The veteran testified at his January 2008 Travel Board 
hearing that he did not appeal the prior decision by filing a 
VA Form 9 or other written appeal because his former 
representative was ill and could not properly handle his 
claim.  The Board notes that, after receipt of an NOD by VA, 
an SOC and Form 9 are sent directly to a claimant, in 
addition to the representative, with instructions on when a 
reply must be sent to VA.  In this case, the record does not 
show a perfected appeal, by either the veteran or a 
representative of the veteran, regarding an increased rating 
between the January 1997 rating decision and when the veteran 
filed the present claim in December 2004.  The veteran's 
claims file contains correspondence from him on other matters 
during that time period, but none regarding this claim.  
Although the veteran wrote in December 2004 that he has 
continuously prosecuted this claim since 1975, the record 
does not support that assertion.

The Court of Appeals for Veterans Claims (CAVC) holding in 
Rudd v. Nicholson, 20 Vet. App. 296 (2006) dictates that the 
veteran's claim for an earlier effective date must fail.  To 
the extent that the veteran intended his December 2004 
statement to be a "freestanding" claim for an earlier 
effective date, "such a possibility vitiates the rule of 
finality."  Rudd, 20 Vet. App. at 300.  A freestanding claim 
for an earlier effective date for a 100 percent evaluation 
for the service-connected psychotic disorder, not otherwise 
specified (formerly characterized as psychophysiological 
musculoskeletal reaction with history of back pain) seeks a 
benefit not provided by law.  As noted above, when the law is 
dispositive against a claim, as here, the claim must be 
denied or the appeal terminated.  Sabonis, 6 Vet. App at 430.  
Therefore, pursuant to Rudd, 20 Vet. App. at 300, this appeal 
must be denied.  




ORDER

The appeal for an effective date earlier than March 9, 1989, 
for the award of a 100 percent disability evaluation for 
service-connected psychotic disorder, not otherwise specified 
(formerly characterized as psychophysiological 
musculoskeletal reaction with history of back pain) is 
denied.



________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs