Citation Nr: 1326670 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-44 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date earlier than January 30, 1989, for a 100 percent rating for schizophrenia. 2. Entitlement to an effective date earlier than January 30, 1989, for a 100 percent rating for schizophrenia on the basis of clear and unmistakable error in a rating decision by January 1992. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1970 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 1997 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In the rating decision in September 1997, the RO found clear and unmistakable error in a rating decision in January 1992, assigning an effective date of March 9, 1989, for a 100 percent rating for schizophrenia. The RO amended the rating decision and assigned an effective date of January 30, 1989. The Board reasonable construes the Veteran's notice of disagreement, dated in March 1998, but not date stamped by VA, to include the RO's decision, assigning an effective date of January 30, 1989, for a 100 percent rating for schizophrenia on the basis of clear and unmistakable error. As the RO has not issued a statement of the case, addressing the claim, the claim is REMANDED to the RO via the Appeals Management Center in Washington, DC. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). FINDINGS OF FACT 1. In a rating decision in January 1992, the RO increased the rating for schizophrenia to 100 percent, effective March 9, 1989; after the Veteran was notified of the rating decision and of his procedural and appellate rights, he did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran and the rating decision became final on the basis of the evidence of record. 2. In the rating decision in September 1997, the RO found clear and unmistakable error in the rating decision in January 1992, assigning an effective date of March 9, 1989, for a 100 percent rating for schizophrenia and amended the effective date to January 30, 1998. CONCLUSION OF LAW Excluding the separate claim of clear and unmistakable error, to the extent there is a freestanding claim for an earlier effective date arising from the rating decision in January 1992, the claim for an earlier effective for a 100 percent rating for schizophrenia has no legal merit. 38 U.S.C.A. § 5110 (West 2002). 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. Excluding the separate claim of clear and unmistakable, the VCAA does not apply to the freestanding claim for an earlier effect date, because there is no reasonable possibility that any further assistance would aid the Veteran in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the appellant in substantiating the claim.). REASONS AND BASES FOR FINDINGS AND CONCLUSION Facts In a rating decision in June 1973, the RO granted service connection and assigned an initial rating of 50 percent for schizophrenia, effective March 4, 1972. In rating decision in June 1984, the RO reduced the rating to 70 percent, effective October 1, 1984, under 38 C.F.R. § 3.105(e) (1984). On appeal to the Board, in a decision in May 1986, before the establishment of the United States Court of Appeals for Veterans Claims and precedent case law, considering the Veteran's argument that there had been no improvement in his disability, the Board found that the disability was productive of no more than severe impairment of social and occupational adaptability. Following a VA examination in January 1989, the RO denied a rating higher than 70 percent for schizophrenia in a rating decision in March 1989. On appeal to the Board, the Board remanded the claim in August 1991. While on appeal in a rating decision in January 1992 the RO increased the rating to 100 percent, effective March 9, 1989, which was a complete grant of the benefit sought, that is, a 100 percent rating. After the Veteran was notified of the 100 percent rating and of his procedural and appellate rights, he did not appeal the rating decision as to the assigned effective date. And no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. And the rating decision became final as to the effective date on the basis of the evidence of record. In October 1996, the Veteran filed the current claim for retroactive compensation, which the RO adjudicated as a claim for an earlier effective date for the 100 percent rating. In the rating decision in September 1997, the RO found clear and unmistakable error in the rating decision in January 1992, assigning an effective date of March 9, 1989, for a 100 percent rating for schizophrenia and amended the effective date to January 30, 1998. Analysis The Veteran did not appeal the rating decision in January 1992, increasing the rating for schizophrenia to 100 percent, effective March 9, 1989, which became final as to the effective date, excluding clear and unmistakable error. The effective date was later amended to January 30, 1989, on the basis of clear and unmistakable error in a rating decision in September 1997. The remedy to overcome finality of a rating decision or a decision by the Board is to raise clear and unmistakable error in the final decision. Otherwise, a claimant may not properly file and the Board has no authority to adjudicate a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed rating decision by the RO. 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 has held that such an appeal should be dismissed. In accordance with Rudd, the Board does not have jurisdiction to review a freestanding claim for an earlier effective date for a 100 percent rating for schizophrenia arising from the rating decision in March 1992 and the freestanding claim of an earlier effective for a 100 percent rating must be dismissed. ORDER Excluding the separate claim of clear and unmistakable error, to the extent there is a freestanding claim for an earlier effective date for a 100 percent rating for schizophrenia arising from the rating decision in January 1992, the claim is dismissed. REMAND The Veteran has raised clear and unmistakable error in adjudicating the assigned effective date for the 100 percent rating. The Board reasonable construes the Veteran's notice of disagreement, dated in March 1998, but not date stamped by VA, to include the RO's decision, assigning an effective date of January 30, 1989, for a 100 percent rating for schizophrenia on the basis of clear and unmistakable error. In accordance with Manlicon as the RO has not issued a statement of the case, the claim is remanded for the following action. Issue a statement of the case on the claim of clear and unmistakable error in the rating decision in January 1992 as to the effective date of the 100 percent rating, addressing the Veteran's argument that the 100 percent rating should be restored to October 1, 1984, the date of the rating reduction from 100 to 70 percent. Also address the claim of clear and unmistakable error in the rating decision in June 1973, assigning a 50 percent rating for schizophrenia, raised by the Veteran in statements in February, March, and August 1998. In order to perfect an appeal to the Board, the Veteran must timely file a substantive appeal, following the issuance of the statement of the case. If any benefit sought is denied, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs