Citation Nr: 1646225 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 14-00 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than April 9, 2010, for the grant of service connection for schizoaffective disorder, to include whether the April 1, 2003, and January 26, 2008, rating decisions contained clear and unmistakable error (CUE). 2. Entitlement to an effective date earlier than April 9, 2010, for the grant of a total disability rating based on individual unemployability (TDIU). 3. Entitlement to an effective date earlier than April 9, 2010, for an award of Dependents' Educational Assistance (DEA) benefits. REPRESENTATION Veteran represented by: Kenneth H. Dojaquez, Attorney ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active duty service from August 1979 to July 1980. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2012 rating decision in which the RO granted service connection for a schizoaffective disorder and assigned an initial 70 percent rating effective April 9, 2010, and granted entitlement to TDIU and eligibility for DEA benefits, each effective April 9, 2010. In addition to the paper claims file, there are additional documents in Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal was denied in a June 2015 Board decision. The Veteran then appealed the Board's unfavorable determination to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion, the CAVC issued a June 2016 Order to vacate the June 2015 denial and remanded the claims to the Board for readjudication. FINDINGS OF FACT 1. An unappealed rating decision in April 2003 denied the Veteran's original claim for service connection for schizoaffective disorder based on a determination that the disorder was not related to service; the Veteran did not appeal the decision nor did he submit any new and material evidence within one year of the decision. 2. The February 2004 VA treatment note, received within one year of the April 2003 rating decision, was cumulative and redundant, did not relate to an unestablished fact necessary to substantiate the claim, and did not raise a reasonable possibility of substantiating the claim. 3. In April 2010, the Veteran filed a request to reopen the previously denied claim, which the RO granted in a July 2012 rating decision, in part on the basis of a favorable June 2012 VA examination. An effective date of April 9, 2010 was assigned, the date the Veteran's request to reopen the claim was received. 4. In July 2012, after the RO granted service connection, the Veteran submitted evidence in the form of service treatment records that were not before the RO previously. 5. The newly received service treatment records are redundant of information contained in other service treatment records that were of record at the time of the April 2003 denial. 6. CUE is not found in the April 2003 and January 2008 rating decisions where the RO did not mention a February 2004 VA treatment note which mischaracterized the findings of the December 2002 VA examiner. 7. CUE is not found in the January 2008 rating decision where the RO did not reopen the Veteran's claim on the basis of the February 2004 VA treatment note or additional VA treatment records. CONCLUSIONS OF LAW 1. The claim for an effective date earlier than April 9, 2010 for service connection of schizoaffective disorder is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.105(a), 3.151, 3.156, 3.400 (2015). 2. The claim for an effective date earlier than April 9, 2010 for a TDIU is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.105(a), 3.151, 3.156, 3.400 (2015). 3. The claim for an effective date earlier than April 9, 2010 for an award of DEA benefits is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.105(a), 3.151, 3.156, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as effective date of service connection, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. The Veteran received a SOC in October 2013 citing the applicable statutes and regulations governing the assignment of an effective date for service connection and discussing the reasons and bases for not assigning earlier effective dates in this case. The VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are private medical records, and post-service VA examination and treatment records. Virtual VA records have been reviewed. There is no indication that there are any outstanding pertinent documents or records pertaining to the issues of entitlement to earlier effective dates that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). To the extent the Veteran also argues CUE as a basis for an earlier effective date, the duties to notify and assist imposed by the VCAA are not applicable where CUE is claimed in Board decisions (see Livesay v. Principi, 15 Vet. App. 165 (2001)) or in AOJ decisions (see Parker v. Principi, 15 Vet. App. 407 (2002)). As noted in Livesay, CUE claims are not conventional appeals but rather are requests for revision of previous decisions. A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. Id. The AOJ considered the CUE component of the Veteran's claims in the October 2013 SOC and the Board may consider the merits of such claim. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims. II. Analysis The Veteran seeks an effective date earlier than April 9, 2010, for service connection for schizoaffective disorder, a TDIU, and for DEA benefits. He has challenged the finality of the April 1, 2003, and January 26, 2008, rating decisions, which denied service connection for schizoaffective disorder, by asserting that reconsideration is warranted based on newly received service treatment records. In the alternative, he contends that the April 2003 and January 2008 rating decisions contain clear and unmistakable error (CUE). The Board notes that the parties indicated in the June 2016 JMR that the Veteran asserted CUE in three decisions, the April 2003 rating decision, the June 2004 statement of the case, and the January 2008 rating decision, however, the VA characterized his claim to include CUE only in the April 2003 and January 2008 rating decisions. Of note, the June 2004 statement of the case is not considered a separate final decision, and therefore is not proper subject for a CUE motion. To the extent that there is something in the content of the June 2004 SOC that the Veteran disagrees with, it is considered part of the April 2003 rating decision denial. Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). The effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r). The United States Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). The Court has also held that, where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A claim is defined by regulation as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefit sought. Id. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. If the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. At 313-14. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). Service treatment records that were of record at the time of the Veteran's initial claim show that he entered service with no psychiatric abnormalities, as indicated on his December 1979 service entrance examination. A February 1980 treatment note shows he was depressed over concerns about his mother and unhappiness in the army. He was diagnosed with adjustment reaction and returned to duty. In March 1980, the Veteran was given a shot of penicillin, to which he had an allergic reaction. Very early the next morning, he was seen in the emergency room with complaints relating to the penicillin shot, as well as complaints of depression relating to problems with his girlfriend and missing his mother. He stated that "he is going to die and smells blood on himself." It was noted he had a psychiatric disturbance, possibly suicidal, and he was referred for psychiatric care. A discharge note indicates the Veteran spent two nights in the hospital, and was admitted with a diagnosis of paranoid state, his treatment in the hospital consisted of psychotherapy and milieu therapy, and that there was "no psychosis, no overt depression present," and that his stay was generally uneventful. His final diagnosis upon leaving the hospital was "adjustment reaction, adult life associated with hysterical feature." His condition was stable, not psychotic or overtly depressed and he was not suicidal. The remainder of his service treatment records are silent for any mental health complaints. Post-service medical records show that the Veteran was first diagnosed with schizoaffective disorder, depressed type, in a September 2002 VA examination. The basic facts in this case are not in dispute. On May 14, 2002, the Veteran filed a formal claim seeking service connection for several disabilities, including depression. The Veteran also was afforded a VA examination in connection with his claim in December 2002, and the examiner stated the following, "It is difficult for this examiner to conclude that the Veteran's consultation [in February 1980] for nervousness, sleep disturbance, depression, confusion, and weight loss is directly attributable to his current diagnosis of schizoaffective disorder because he was diagnosed as suffering from adjustment reaction at that time. However, there is consistency in his symptoms between his visit for an adjustment reaction in February 1980 and his recent diagnosis of schizoaffective disorder given that, in both cases, the Veteran appears to have complained of chronic anxiety, sleep disturbance, weight loss and depression." In an April 2003 rating decision, the RO denied the Veteran's claim, which had been recharacterized as schizoaffective disorder, on the basis that service treatment records showed a diagnosis of adjustment reaction and "no psychosis, no overt depression present," and based on the fact that the December 2002 VA examiner was not able to provide "a confirmed clear association" between the Veteran's current disability and his in-service complaints. Notice of the RO's decision and the Veteran's appellate rights were sent to his address of record in April 2003. In November 2003, the Veteran filed an NOD as to the April 2003 rating decision, after which the RO issued an SOC in June 2004. The Veteran did not perfect his appeal by filing a VA Form 9 or statement in lieu thereof within 60 days of the issuance of the SOC or during the one-year appeal period following the issuance of the rating decision. See 38 C.F.R. §§ 20.200, 20.202 (2015). On April 9, 2010, the RO received his petition to reopen his schizoaffective disorder claim in which the Veteran provided permission for private treatment records to be obtained and identified VA treatment as well. In April 2010, he was provided VCAA notice of what constituted new and material evidence necessary to reopen his claim. In an August 2010 rating decision, the RO declined to reopen his claim on the basis that treatment records were not material, as they did not establish that his claimed disability was related to service. In February 2011, the Veteran's representative filed an NOD. In June 2012, the Veteran underwent another VA examination that resulted in the examiner linking his schizoaffective disorder to service. In a July 16, 2012, rating decision, the RO granted service connection for a schizoaffective disorder, along with TDIU and DEA benefits, all with an effective date of April 9, 2010. On July 27, 2012, the RO received additional argument and evidence from the Veteran's representative, including service treatment records detailing the Veteran's psychiatric hospitalization that were not of record previously and a July 2012 private medical opinion linking the Veteran's schizoaffective disorder to service. In particular, the in-patient records consist of progress notes detailing the Veteran's feelings of depression relating to his experience in the army and being separated from his mother, and his fear of dying after an adverse reaction to penicillin shot. In August 2012, the Veteran and his representative were notified of the July 2012 rating decision. While the Veteran asserts that an effective date earlier than April 9, 2010, is warranted, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable for service connection for schizoaffective disorder, a TDIU, or an award of DEA benefits. The Veteran has asserted that service connection for a schizoaffective disorder should be granted from May 14, 2002, the date of his original claim. The May 2002 claim was finally resolved by the unappealed April 2003 rating decision in which the RO denied service connection for a schizoaffective disorder. The claims file does not document that, following the April 2003 rating decision, the Veteran perfected an appeal as to that decision. The Veteran, through his representative, has challenged the finality of the April 2003 rating decision, stating that such decision should be reconsidered under 38 C.F.R. § 3.156(c) on the basis of the newly received service treatment records. Under the provisions of 38 C.F.R. § 3.156(c), any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. Retroactive evaluation is predicated on a circumstance in which service connection has been granted on the basis of new evidence from the service department. 38 C.F.R. § 3.156(c) (emphasis added). In this case, the RO's eventual grant of service connection in July 2012 did not rely on service treatment records that were received after VA's initial denial in 2003. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). At the time of the April 2003 rating decision, the evidence before the RO included medical evidence of a current disability and service treatment records reflected a psychiatric hospitalization with an ultimate diagnosis of adjustment disorder and "no psychosis, no overt depression present." A December 2002 medical examiner could not conclude that the Veteran's current psychiatric disability was related to service. The missing element of service connection - medical opinion that the Veteran's current psychiatric disability was related to service - was not of record until 2012, and the favorable opinion in 2012 was rendered without the missing service records. The rating decision in July 2012 cites three factors for granting service connection: post-service private treatment records showing treatment for schizoaffective disorder, the Veteran's service treatment records showing a diagnosis of adjustment disorder, and a VA medical opinion in June 2012 in which the examiner stated an opinion that the Veteran's schizoaffective disorder was related to service. As the in-service psychiatric hospitalization reports were not yet of record, the July 2012 VA examiner clearly did not base his opinion on a review of those records. Additionally, the Board points out that, between the April 2003 denial of service connection and the July 2012 grant of service connection, the service treatment records of record contained details from the Veteran's in-service psychiatric hospitalization, including his admitting diagnosis, his course of treatment during his stay, the length of his stay, and his discharge diagnosis. Accordingly, the additional service treatment records showing the Veteran's psychiatric hospitalization do not show anything new. They simply are cumulative of information already contained in the service treatment records at the time of the April 2003 denial. In short, as the claim for service connection was granted without consideration of the missing service treatment records, the provisions of 38 C.F.R. § 3.156(c) do not apply. In the alternative, the Veteran, through his representative, also has argued that the April 2003 rating decision is not final. He argues that a February 2004 VA treatment note states in part that "...a recent C&P service-connection [...] psychiatric evaluation by Dr. [M] concluded that [the Veteran] has schizoaffective disorder, and that it is in continuity with his prior psychiatric tx. Nonetheless, for unclear reasons, the claim was denied." The Veteran also argues that, as neither the June 2004 SOC nor the January 2008 rating decision addressed that medical record, VA is obligated to make a determination under 38 C.F.R. § 3.156(b) as to whether that evidence is material. He further argues in the alternative that the RO committed CUE because it did not specifically address such evidence in the April 2003 rating decision. In support of his argument, he cites Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence and declining to presume that VA considered records of which it had notice, but never obtained). Applicable regulations provide that, if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young, 22 Vet. App. at 468. The Board finds that failure to specifically mention the February 2004 VA treatment note does not necessarily mean that such evidence was not considered by the RO. The Federal Circuit has held that although there is an obligation to provide reasons and bases supporting a decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran must not assume that the VA has overlooked pieces of evidence that are not explicitly discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Moreover, the Board finds that the April 2003 rating decision is final, as the February 2004 treatment note is not material to the claim. The February 2004 VA treatment note cited by the Veteran's representative paraphrases the findings of the December 2002 VA examiner, who ultimately found that he could not conclude that there was relationship between the Veteran's schizoaffective disorder and service. While the February 2004 psychiatrist states that Dr. M. concluded the Veteran had schizoaffective disorder and that it was in continuity with his prior psychiatric treatment, the February 2004 psychiatrist did not opine that the Veteran's current disorder was causally or etiologically due to service or had an onset during service. The Board notes that at the time of the April 2003 rating decision, a diagnosis of schizoaffective disorder was already of record. Thus, while the February 2004 treatment note evidence is "new" in that it was not previously before the RO at the time of the April 2003 denial and it is credible, it is not material to the Veteran's claim as it is merely cumulative and redundant of evidence already of record. The Board has carefully considered whether the submission of such evidence prevented the April 2003 rating decision from becoming final. 38 C.F.R. § 3.156(b)(new and material evidence received within the one year period prior to the decision becoming final or received prior to the appellate decision if a timely appeal has been filed is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period); Beraud v. McDonald, 766 F.3d 1402, 1406 -07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence and declining to presume that VA considered records of which it had notice, but never obtained); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011)(noting that 3.156(b) requires VA to determine whether subsequently submitted evidence constituted new and material evidence relating to an earlier claim). Here, the Board notes that the Veteran submitted a notice of disagreement to the April 2003 rating decision in November 2003. VA treatment notes, containing the February 2004 note, were printed and associated with the claims file in March 2004. The claim was then subsequently readjudicated on a de novo basis in a June 2004 statement of the case, at which time it was noted that the Veteran's treatment records contained a current diagnosis, but did not provide evidence of a link between his time in service and current diagnosis. The Veteran then failed to submit a substantive appeal for the April 2003 rating decision, and as such, it became final. As such, the Board finds that at the time the February 2004 treatment note was associated with the claims file, the April 2003 decision was not final. The Veteran had submitted a notice of disagreement to the decision; however, the RO conducted a de novo review of all evidence of record at the time of the June 2004 statement of the case, which included the February 2004 treatment record. The Board notes that this is distinguishable from Beraud, as the records identified in Beraud were service treatment records and remained outstanding and not considered in a readjudication. Here, the February 2004 VA treatment record was associated with the claims file at the time of the June 2004 statement of the case. As the Court has noted, when the VA receives new evidence within the one-year appeal period after it issues a rating decision, it must readjudicate the claim and failure to do so may render the claim pending and unadjudicated. In this case, this was accomplished by the June 2004 statement of the case, which involved a de novo review of the evidence in the claims file, including the February 2004 treatment note that was associated with the claims file in March 2004. The Veteran then failed to complete a substantive appeal to the June 2004 statement of the case. For these reasons, the Board finds that the failure to specifically note the February 2004 treatment note did not preclude the finality of the April 2003 rating decision and did not constitute CUE. To the extent that the Veteran's representative also has argued that the January 2008 rating decision contains CUE because his claim was not reopened despite VA treatment records dated in August 2004 and March and April 2007 showing psychiatric hospitalization, the Board points out that such records are redundant of evidence of record already establishing that the Veteran has a current disability and are not material. Thus, the Board finds that the failure to reopen the Veteran's claim in the January 2008 rating decision also is not CUE. As noted, the effective date of service connection based on a reopened claim shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r) (2015) (emphasis added). In this case, April 9, 2010, is the earliest possible date from which the award of service connection for a schizoaffective disorder may be made effective. That is the date that VA received the Veteran's petition to reopen his claim for service connection for schizoaffective disorder, which culminated in the eventual award of that benefit. As the Veteran's entitlement to individual unemployability and DEA benefits flows from the grant of service connection for schizoaffective disorder, those claims also cannot have an effective date earlier than April 9, 2010. While the Board is sympathetic to the Veteran, the pertinent legal authority governing effective dates is clear and specific. The Board is bound by such authority. On these facts, there is no legal basis for assignment of an effective date earlier than April 9, 2010, for the award of service connection for schizoaffective disorder, TDIU and DEA benefits. In summary, the Board finds that the claims for earlier effective dates must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than April 9, 2010 for service connection for schizoaffective disorder is denied. Entitlement to an effective date earlier than April 9, 2010 for a TDIU is denied. Entitlement to an effective date earlier than April 9, 2010 for an award of Dependents' Educational Assistance (DEA) benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs