Citation Nr: 1607027 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 15-29 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an effective date earlier than October 19, 1995, for the award of service connection for a psychiatric disorder, to include bipolar disorder. 2. Entitlement to special monthly compensation (SMC) on account of being housebound. REPRESENTATION Appellant represented by: Lori Chism, Attorney ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An effective date earlier than October 19, 1995, for the grant of service connection for a psychiatric disorder was finally denied by a December 2011 Board decision that was affirmed by the Court of Appeals for Veterans Claims on April 19, 2013. 2. The Veteran is already in receipt of SMC based on the need for regular aid and attendance, which is a greater benefit than SMC on account of being housebound. CONCLUSIONS OF LAW 1. The Veteran's claim seeking an effective date prior to October 19, 1995, for the grant of service connection for a psychiatric disorder lacks legal merit. 38 U.S.C.A. §§ 7252, 7291 (West 2014); 38 C.F.R. §§ 20.101, 20.1400(b) (2015). 2. Entitlement to special monthly compensation based on housebound status is dismissed as moot. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As will be discussed below, the claims on appeal are being denied as a matter of law or dismissed as moot. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist, as the underlying law is dispositive for these issues on appeal. A. Earlier Effective Date The Veteran asserts that an effective date earlier than October 19, 1995, is warranted for the award of service connection for an acquired psychiatric disorder, to include bipolar disorder, with secondary substance abuse and dementia. By way of history, the record shows that service connection for a psychiatric disorder, to include bipolar disorder, was first established by a March 2005 rating decision, effective February 11, 2004. The Veteran perfected an appeal regarding the February 11, 2004 effective date assigned. In April 2010, the Board granted an earlier effective date of December 11, 1998. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) the Board's April 2010 decision to the extent that it denied an effective date earlier than December 11, 1998 for the grant of service connection. In August 2011, the Court vacated and remanded that matter back to the Board. In December 2011, the Board issued a new decision granting an effective date of October 19, 1995, but not earlier, for the award of service connection for an acquired psychiatric disorder. The Veteran again appealed to the Court the Board's decision to deny an effective date earlier than October 19, 1995. In April 2013, the Court issued a Memorandum Decision affirming the Board's December 2011 decision. The Veteran did not appeal the Court's April 2013 decision to a higher court. Thus, the Board's December 2011 decision denying an effective date earlier than October 19, 1995, for the award of service connection for an acquired psychiatric disorder became final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015). The RO issued a January 2012 rating decision which effectuated the Board's assignment of the October 19, 1995 effective date for the grant of service connection for a psychiatric disorder. In September 2012, the Veteran, through his representative, submitted a statement expressing disagreement with the January 2012 rating decision and seeking an effective date earlier than October 19, 1995. However, that statement cannot constitute a notice of disagreement inasmuch as a veteran may not challenge the merits of a Board decision by expressing disagreement with the AOJ's implementing rating decision. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed.Cir.1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet.App. 404, 409 (1997) ("an RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal")." Thus, the September 2012 statement was treated by the RO as a new claim for an earlier effective date. However, VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of a prior final decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). Regardless, the Veteran's appeal as to the October 19, 1995 effective date is barred by the doctrine of res judicata. The Court affirmed the denial of an effective date prior to October 19, 1995 in its April 2013 Memorandum Decision. Neither the Board nor the RO can overturn the Court's decision. The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim. Cf. Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from "relitigating the same issue based upon the same evidence, albeit for a different purpose"). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("'The purpose of the rule of finality is to preclude repetitive and belated readjudications of veterans' benefits claims.'" (quoting Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002); see also Bissonnette v. Principi, 18. 105, 112 ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three."). In this case, the December 2011 Board decision is final on the issue of the assigned effective date for the grant service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Readjudication of this issue is precluded by res judicata and the appeal is dismissed. B. Special Monthly Compensation In October 2010, the Veteran filed a claim seeking special monthly compensation (SMC) on account of being housebound under 38 U.S.C.A. § 1114(s). However, the record shows that the Veteran is already in receipt of SMC based on the need for regular aid and attendance under 38 U.S.C.A. § 1114(l), which was awarded by an April 2007 rating decision, effective February 11, 2004. Special monthly compensation based on the need for regular aid and attendance is a higher level of compensation than that of special monthly compensation at the housebound rate. See 38 U.S.C.A. § 1114. Thus, the Veteran is already receiving the greater benefit, and it would be adverse to the Veteran's interests to award SMC at the housebound level instead of the SMC at the aid and attendance level he has already been granted. As such, the Board concludes that the Veteran's claim for SMC on account of being housebound is moot because the SMC rate already in effect based on the need for regular aid and attendance already is the greater benefit, and no additional benefit can be gained. Timberlake v. Gober, 14 Vet. App. 122 (2000). Thus, the Veteran's claim for SMC housebound benefits under 38 U.S.C.A. § 1114(s) is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy to employ when an appeal has become moot). ORDER The claim of entitlement to an effective date earlier than October 15, 1995, for the grant of service connection for a psychiatric disorder is dismissed. The claim of entitlement to SMC on account of being housebound is dismissed. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs