Citation Nr: 1316688 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-34 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date earlier than October 8, 2004 for the award of a 100 percent evaluation for paranoid schizoaffective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1979 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran filed his original claim for entitlement to service connection for a nervous disorder or anxiety in August 1981. 2. In a March 1982 rating decision, the RO denied service connection for a nervous disorder. The Veteran filed a notice of disagreement, but did not respond to the Statement of the Case. The decision became final and new and material evidence was not received within one year of the decision. 3. In July 2002, the Veteran filed an application to reopen a claim for service connection for a psychiatric disorder. 4. In a December 2002 rating decision, the RO determined that new and material evidence was not submitted to reopen a claim for service connection for a personality disorder (originally claimed as a nervous disorder). It was unappealed and became final within a year of notification to the Veteran. Ne and material evidence was not received within one year of the decision. 5. In October 2004, the Veteran filed an application to reopen his claim for service connection for a schizoaffective disorder. 2. In an October 2005 rating decision, the RO granted service connection for paranoid schizoaffective disorder and assigned a 100 percent evaluation, effective on October 8, 2004. It was unappealed and became final within a year of notification to the Veteran. New and material evidence was not received within one year of the decision. 3. In September 2007, the Veteran filed a request for entitlement to an effective date earlier than October 8, 2004 for the award of a 100 percent evaluation for his paranoid schizoaffective disorder. CONCLUSION OF LAW The request of entitlement to an effective date prior to October 8, 2004 for the award of a 100 percent evaluation for paranoid schizoaffective disorder is dismissed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012), Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act (VCAA), those provisions are not applicable here because resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no application to an appeal limited to a matter of law); Dela Cruz v. Principi, 15 App. 143, 149 (2001) (noting that the VCAA is not applicable where the law is dispositive); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). In August 1981, the Veteran filed a claim for entitlement to service connection for a nervous disorder or anxiety. In a March 1982 rating decision, the RO denied the claim for service connection for a nervous disorder. The Veteran filed a notice of disagreement, but he did not respond to the Statement of Case. The decision became final and new and material evidence was not received within one year of the decision. In July 2002, the Veteran filed an application to reopen a claim for service connection for a psychiatric disorder. In a December 2002 rating decision, the RO determined that new and material evidence had not been submitted to reopen a claim for service connection for a personality disorder (originally claimed as a nervous disorder). At that time, there was evidence that the Veteran had a diagnosis of acquired pathology, a diagnosis of schizoaffective disorder. It was unappealed. Evidence was received within one year of the decision; however, the evidence included a document confirming schizoaffective disorder. Therefore, the evidence was cumulative rather than new and material. 38 C.F.R. § 3.156. In October 2004, the Veteran filed another applicationto reopen a claim for service connection for schizoaffective disorder. In an October 2005 rating decision, the RO granted the claim for service connection for paranoid schizoaffective disorder and assigned a 100 percent evaluation, effective on October 8, 2004, which was the date of VA received the application to reopen the service connection claim. The Veteran did not appeal the effective date and the decision became final within a year of notification to the Veteran. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007); see also Di Carlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (noting that except as provided by law, when a case or issue is decided and no appeal is taken, no further review is afforded). Additionally, the Veteran did not submit new and material evidence pertaining to the effective date within one year of the decision. In September 2007, the Veteran filed a request for entitlement to an effective date earlier than October 8, 2004 for the award of a 100 percent evaluation for paranoid schizoaffective disorder. However, after a rating decision that assigns an effective date is final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd, 20 Vet. App. At 299. Freestanding earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. at 300. Accordingly, when a freestanding earlier effective date claim is made without a request for reconsideration due to CUE in the relevant rating decision, the claim must be dismissed. Id. Here, the Veteran's request for entitlement to an earlier effective date was filed after the October 2005 rating decision was final and there is no allegation of CUE in the rating decision. Accordingly, the Veteran's claim is a freestanding earlier effective claim and must be dismissed. Rudd, 20 Vet. App. at 300; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that when the law is dispositive of the claim, it must be denied due to lack of legal entitlement). ORDER The appealof entitlement to an effective date prior to October 8, 2004 for the award of service connection for paranoid schizoaffective disorder is dismissed. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs