Citation Nr: 1511163 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 13-07 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date earlier than March 23, 1976, for the award of service connection and compensation for a service-connected psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran had active military service from August 1968 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In January 2014, the Veteran testified at a hearing conducted at VA's Central Office in Washington, DC before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Virtual VA claims file. FINDINGS OF FACT 1. By a June 25, 1976 rating decision, the RO awarded service connection and a 10 percent rating for schizophrenic reaction secondary to psychiatric manifestations in remission and assigned an effective date of March 23, 1976. The Veteran did not appeal the decision. 2. In August 2009, the Veteran submitted a request for an earlier effective date for the award of service connection and compensation for his psychiatric disability. CONCLUSIONS OF LAW 1. The June 1976 RO decision, which awarded service connection and a 10 percent rating for schizophrenic reaction secondary to psychiatric manifestations in remission, effective from March 23, 1976, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 19.112, 19.118 (1975). 2. The claim for an effective date earlier than March 23, 1976, for the award of service connection and compensation for psychiatric disability is legally insufficient. 38 U.S.C.A. § 7105 (West 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS By way of background, while on active duty, a Medical Evaluation Board (MEB) found the Veteran had paranoid schizophrenia on January 29, 1973. A Physical Evaluation Board (PEB) assigned a 100 percent evaluation on February 2, 1973 for paranoid schizophrenia. The Veteran was honorably discharged on April 10, 1973. He was assigned to the Temporarily Disability Retired List (TDRL) effective April 10, 1973, and rated 100 percent disabled by the service department. In May 1973, the Veteran filed a service connection claim for a "nervous condition." In June 1973, the service department advised VA that the Veteran was still on active duty. The VA then notified the Veteran in a July 1973 letter that because he was still on active duty, no further action would be taken on his claim. He was advised to inform VA when he was actually discharged from service, so that his claim could be further considered. In October 1973, the Veteran submitted a statement withdrawing his claim for compensation. On March 23, 1976, the Veteran filed a claim of entitlement to service connection for a nervous condition. By a June 25, 1976 rating decision, the RO awarded a 10 percent rating for schizophrenic reaction secondary to psychiatric manifestations in remission and assigned an effective date of March 23, 1976--the effective date of the award of service connection. The Veteran was notified of that decision by a letter dated in August 1976. He did not appeal the decision. Thus, it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.112, 19.118 (1975). Thereafter, in April 2009, the Veteran, through his representative, submitted a request for entitlement to a 50 percent evaluation for his service-connected psychiatric condition effective April 11, 1973, the day after he was discharged from active duty. The RO construed the Veteran's request as a claim of entitlement to an earlier effective date for the award of service connection. In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court), held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal must be dismissed. Moreover, in Leonard v. Nicholson, the United States Court of Appeals for the Federal Circuit determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). In short, when there has been a final decision on the question of effective date for the award of service connection, a claim to reopen cannot provide the basis for an award of an earlier date, even if new and material evidence is presented. The Board also notes that while the finality of the March 1976 decision could be vitiated by a finding of clear and unmistakable (CUE) in that decision (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates), no such claim has been raised here. A CUE claim requires some degree of specificity not only as to what the alleged error is, but--unless it is the kind of error that, if true, would constitute CUE on its face--persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). The current arguments of the Veteran and his representative, to include new evidence regarding the Veteran's state of mind when deciding to withdraw his service connection claim in October 1973, do not allege CUE. (A disagreement with how the facts were weighed or evaluated is not CUE; rather, either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 313 (1992).) In this case, there is no indication that the correct facts were not before the RO at the time of the March 1976 rating decision; nor is there any indication that the statutory or regulatory provisions extant at the time were incorrectly applied. The Veteran's allegations did not amount to a CUE claim, and the RO has not specifically addressed such a claim. Upon review of the evidence of record, and the Veteran's contentions as to why he should receive an earlier effective date for the grant of service connection for psychiatric disability, the Board finds that there is no legal basis to grant his current claim. ORDER The appeal is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs