Citation Nr: 1408994 Decision Date: 03/04/14 Archive Date: 03/12/14 DOCKET NO. 11-04 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than September 1, 2001, for the award of service connection for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a November 2010 rating decision issued by the Regional Office (RO) in Lincoln, Nebraska. The Veteran indicated in his February 2011 VA Form 9 that he wished to testify at a hearing. In March 2012, however, the Veteran failed to appear for a hearing before a Veterans Law Judge at the Board of Veterans' Appeals. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2013). 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 such file reveals documents that are either duplicative of the evidence in the claims file or irrelevant to the issue on appeal. FINDINGS OF FACT 1. A final June 2003 RO decision denied a claim of entitlement to an earlier effective date for the award of service connection for schizophrenia. 2. The Veteran submitted an application to reopen a claim of entitlement to an earlier effective date for service connection for schizophrenia in September 2010. CONCLUSION OF LAW The claim for an effective date earlier than September 1, 2001, for the award of service connection for schizophrenia is dismissed as a matter of law. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013); Rudd v. Nicholson, 20 Vet. App. 299-300 (2006); Leonard v. Nicholson, 405 F.3d 1333 (Fed.Cir.2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim at issue involves a question of law based solely on a retroactive review of the documents of record. There are no issues of material fact to be resolved. As such, the provisions of the Veterans Claims Assistance Act (VCAA) are not applicable. See Andrews v. Principi, 16 Vet. App. 309 (2002) (deciding a claim for an earlier effective date of award without discussion of the VCAA). Nonetheless, the Board notes that basic principles of due process have been observed in this case. The RO has provided the Veteran with a statement of the case which notified him of the reasons and bases for denying his claim as well as the evidence and regulations reviewed in arriving at its determination. Both the Veteran and his representative have provided argument as to why his claim should be granted. The Board is not aware of any additional evidence that could substantiate the Veteran's claim for an earlier effective date for the grant of service connection for schizophrenia. Therefore, the Board finds that there is no prejudice to the Veteran in proceeding to a decision at this time. Legal Principles and Analysis The Veteran seeks to establish an earlier effective date for the grant of service connection for schizophrenia, generally claiming that he has been schizophrenic since his active service, which ended in June 1979. In a rating decision dated August 2002, the RO assigned an initial 100 percent rating for schizophrenia effective September 1, 2001, which was the date of claim (the RO later acknowledged that the original claim was actually received on September 10, 2001 but did not retroactively adjust his benefits). The Veteran appealed the effective date and a June 2003 statement of the case denied entitlement to an earlier effective date for schizophrenia. The Veteran was notified of the denial and in a July 2003 statement, he expressed his desire to withdraw the appeal. He submitted nothing further regarding an earlier effective date until September 2010, when he again claimed entitlement to an earlier effective date for schizophrenia. The Veteran has filed a freestanding claim to obtain an earlier effective date. This is precluded as a matter of law and is to be dismissed. See Rudd, 20 Vet. App. at 299-300. As a matter of law, therefore, the Board finds that the Veteran cannot obtain an earlier effective date of award in this case. The only other avenue available to the Veteran requires revising or reversing the prior June 2003 RO decision on the basis of clear and unmistakable error in an earlier action. No such allegations have been raised in this case and the matter is not subject to Board review. ORDER The claim of entitlement to an effective date earlier than September 1, 2001, for the award of service connection for schizophrenia is dismissed. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs