Citation Nr: 1324413	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  10-06 089	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois

THE ISSUE

Entitlement to an effective date earlier than March 5, 1998, for the grant of service connection for paranoid schizophrenia.

(The issue of whether there was clear and unmistakable error in an July 2004 decision of the Board of Veterans' Appeals, which denied entitlement to an effective date earlier than March 5, 1998, for the grant of service connection for paranoid schizophrenia, is the subject of a separate Board decision.)  

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

WITNESSES AT HEARING ON APPEAL

Veteran and Ms. R. 

ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 


INTRODUCTION

The Veteran, who is the appellant, served on active duty from February 1989 to February 1990.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file. 


FINDING OF FACT

In a rating decision in December 1998, the RO granted service connection for paranoid schizophrenia, effective March 5, 1998; on appeal of the effective date to the Board in a decision in July 2004, the Board denied the appeal.


CONCLUSION OF LAW

The criteria for legal entitlement to an effective date earlier than March 5, 1998, for the grant of service connection for paranoid schizophrenia have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.



As the law is dispositive, the provisions of the VCAA do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Effective Date Criteria

The effective date for an award of service connection based on an original claim, is the day following separation from active service if the claim is received within one year after separation from service, otherwise, the date of receipt of the claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400.

The Veteran was separated from service in February 1990.  The first communication of record from the Veteran was the Veteran's formal application for VA disability compensation, which was received by VA on March 5, 1998.  

In a rating decision in December 1998, the RO granted service connection for paranoid schizophrenia, effective from March 5, 1998, the date of receipt of the formal claim.  The Veteran appealed the effective date assigned.  In a final decision in July 2004, the Board denied the appeal.   38 C.F.R. § 20.1100. 

While the Veteran moved for reconsideration of the Board decision in May 2006, the Board denied the motion in August 2006.  38 C.F.R. § 20.1101.  

The only remedy to overcome finality of the Board's decision is a motion for revision based on clear and unmistakable error.  38 C.F.R. § 3.105(a).  Otherwise, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision.   Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).  




When such a freestanding claim for an earlier effective date is raised, the United States Court of Appeals for Veterans Claims (the Court) has held that such an appeal should be dismissed.

The Veteran's representative has raised a claim of clear and unmistakable error with respect to the effective date assigned for the award of service connection for paranoid schizophrenia.  This matter is addressed by the Board in a concurrently issued decision.

As to the freestanding earlier effective date claim, the Board is without legal authority to take jurisdiction of this issue.  Accordingly, the claim for an effective date earlier than March 5, 1998, for the award of service connection for paranoid schizophrenia must be dismissed.


ORDER

The claim of entitlement to an effective date earlier than March 5, 1998, for the award of service connection for paranoid schizophrenia, is dismissed.



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs