Citation Nr: 1323876 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-03 525A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to December 31, 1990, for the grant of a 100 percent rating for service-connected schizophrenia. (The issue of whether there was clear and unmistakable error in a January 1991 Board decision that granted a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia is addressed in a separate decision of the Board). REPRESENTATION Appellant represented by: John F. Cameron, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to October 1978. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that denied an effective date prior to December 31, 1990, for grant of a 100 percent rating for service-connected schizophrenia. In an April 2011 decision, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In a March 2012 Order, the Court granted the parties' Joint Motion for Remand, vacated the Board's April 2011 decision, and returned the case to the Board for readjudication. FINDINGS OF FACT 1. The August 1999 Board decision that denied an effective date earlier than December 31, 1990, for a 100 percent rating for schizophrenia is final. 2. The Veteran has not asserted that clear and unmistakable error was made in the August 1999 Board decision. CONCLUSION OF LAW The claim of entitlement to an effective date prior to December 31, 1990, for the grant of a 100 percent rating for schizophrenia, is dismissed. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012), Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the resolution of the Veteran's appeal for an effective date earlier than December 31, 1990, for the grant of a 100 percent rating for schizophrenia is dependent solely on the law and regulations pertaining to claims for VA benefits, no further development under the duty to notify and assist is warranted. Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000); Livesay v. Principi, 15 Vet. App. 165 (2001); VAOPGCPREC 2-04 (2004), 69 Fed. Reg. 25180 (2004). Earlier Effective Date The Veteran asserts that he is entitled to an earlier effective date in either 1988 or 1978 for the award of a 100 percent rating for service-connected schizophrenia. The effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). If a claim is received within one year after separation from service, the effective date for the grant of service connection is the day following separation from service. Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2012). For increased ratings, the effective date of an increase is the date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2012). Service connection for schizophrenia has been in effect since January 1981 when the RO assigned an initial rating of 10 percent for the disability. The Board granted a 70 percent rating and effectively denied a 100 percent rating for service-connected schizophrenia in a final decision dated January 7, 1991. The Veteran did not appeal the January 7, 1991, Board decision to the Court. On February 5, 1991, the RO received a discharge summary from a period of hospitalization at a VA Medical Center (VAMC) from December 31, 1990, to January 24, 1991, that showed a diagnosis of schizophrenia. The document was construed as an informal claim for an increased disability rating for service-connected schizophrenia. An April 1991 rating decision confirmed and continued the 70 percent rating for service-connected schizophrenia, and the Veteran appealed that decision to the Board. A June 1996 Board decision granted an increased rating to 100 percent under former § 4.16(c) of VA regulations. In implementing the June 1996 Board decision the RO assigned an effective date of December 31, 1990, for the 100 percent rating. The Veteran timely appealed the assignment of the December 31, 1990, effective date to the Board. In an August 1999 decision, the Board determined that the Veteran did not meet the underlying legal or regulatory basis that would permit the assignment of a 100 percent disability rating for his schizophrenia prior to December 1990. In the Joint Motion, the parties agreed that the Board should address whether the Veteran's handwritten statement received by the RO on November 15, 1999, was a Motion for Reconsideration of the Board's August 1999 decision, thereby rendering the August 1999 Board decision non-final since it was filed within the 120-day time limit for filing an appeal to the Court. In the November 1999 document, the Veteran included his name and claim number, and stated that he "would appreciate disability payments beginning October 1, 1978 thru to the date the bill signed to limit disability to five years after the bill was signed into law." He further noted that "with this evidence I hope the administration would reconsider [ ] their errowed decidion." (sic). The provisions of 38 C.F.R. § 20.1001(a) specify that a Veteran must submit a motion for reconsideration in writing and must include the name of the Veteran, the applicable VA file number; and the date of the Board decision to be reconsidered." Moreover, the motion for reconsideration must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. 38 C.F.R. § 20.1001(a) (2012). Additionally, the motion should be filed at the following address: Director, Management and Administration (01E), Board of Veteran's Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. 38 C.F.R. § 20.1001(b) (2012). The Board is obligated to read a Veteran's submission sympathetically. However, a claim must be reasonably raised. Robinson v. Shinseki, 557 F.3d 1355 (2009) (VA's duty to read filings sympathetically applies to both pro se claimants and those who are represented); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Even upon a sympathetic reading, the Board finds that the Veteran's November 1999 correspondence does not reasonably raise a motion for reconsideration of the August 27, 1999, Board decision. The November 1999 correspondence included the Veteran's name and claim file number as required by 38 C.F.R. § 20.1001(a). However, a review of the received date stamp shows that the Veteran submitted the document to the RO and not to the Board. Strict compliance as to where within VA a motion for reconsideration must be filed is not required. Boone v. Shinseki, 22 Vet. App. 412 (2009); Posey v. Shinseki, 23 Vet. App. 406 (2010). Therefore, that fact alone is not dispositive. Nevertheless, the Veteran also did not refer to a specific Board decision in the November 1999 correspondence as required by 38 C.F.R. § 20.1001(a). To the contrary, he only referred to an "errowed decidion." Moreover, he did not clearly and specifically set forth the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting reconsideration in accordance with 38 C.F.R. § 20.1001(a). He merely referred to a bill signed into law by the President. Consequently, he failed to comply with the majority of requirements listed in 38 C.F.R. § 20.1001 to successfully file a motion for reconsideration of a Board decision. Consequently, the Board finds that it may not be reasonably construed as a motion for reconsideration, despite that he used the word reconsider in the document. Finally, the Board finds it significant that neither the Veteran nor his then representative, the Disabled American Veterans, subsequently made any efforts to clarify that the November 1999 correspondence was actually intended to be a motion for reconsideration of the Board's August 1999 decision, including in the April 2005 Memorandum that specifically stated that the Veteran was filing a claim for an earlier effective date for his service-connected paranoid schizophrenia, prior to the Board's April 2011 decision. In sum, even upon a sympathetic reading, the Board finds that the November 1999 correspondence does not constitute a motion for reconsideration because it did not contain sufficient information necessary to be construed as a motion for reconsideration of the August 1999 Board decision as required by the pertinent regulation. Consequently, the Board finds that the August 1999 Board decision that denied an effective date prior to December 30, 1990, for the grant of a 100 percent rating for schizophrenia is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). Again, while the Veteran has subsequently re-filed a claim of entitlement to an earlier effective for the award of a 100 percent rating for service-connected schizophrenia, the Board finds that claim is precluded by law. To seek an earlier effective date for a final decision, a Veteran must file a claim of clear and unmistakable error concerning the prior decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on clear and unmistakable error could result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality). This present claim was filed and developed as a free-standing claim for entitlement to an earlier effective date. The disposition of the Veteran's effective date claim is controlled by legal precedent and is based upon the operation of law. The Board has determined that the August 1999 Board decision is final, and the Veteran has not asserted that a clear and unmistakable error was made in that decision. Because the evidence does not show that the Veteran filed a clear and unmistakable error claim with regard to the final decision August 1999 Board decision, and has instead attempted to file a free-standing earlier effective date claim, dismissal is the appropriate remedy. The Board has no alternative but to dismiss the appeal without prejudice to the Veteran's filing a clear and unmistakable error claim. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Veteran's claim for entitlement to an earlier effective date for the award of a 100 percent rating for service-connected schizophrenia is dismissed. ORDER The appeal for entitlement to an effective date prior to December 31, 1990, for the grant of a 100 percent rating for schizophrenia is dismissed. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs