Citation Nr: 1802808	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  14-15 345	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an effective date prior to April 28, 2008 for the grant of service connection for schizophrenia, to include whether there was clear and unmistakable error (CUE) in the March 2013 rating decision which assigned the effective date of April 28, 2008.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

R. E. Jones, Counsel




INTRODUCTION

The Veteran served on active duty from September 1980 to May 1987.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia.   

The Board notes that although a claim for an earlier effective date for child payments has been perfected, the Veteran has requested a hearing regarding that issue and that issue is not currently before the Board.  The Veteran has not requested a hearing regarding the claim decided below.


FINDING OF FACT

Following a November 2006 Board decision which denied service connection for a psychiatric disorder, the Veteran did not submit a claim for service connection for schizophrenia until April 28, 2008.


CONCLUSION OF LAW

The criteria have not been met for an effective date prior to April 8, 2008, for the grant of service connection for schizophrenia.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran's effective date appeal arises from the Veteran's disagreement with the initial assignment of an effective date following the grant of service connection.  The Veterans Claims Assistance Act of 2000 (VCAA) requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Generic notice provided in the rating decision and the statement of the case (SOC) has already provided the claimant with the notice of the law applicable to the specific claims on appeal.  Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007).

Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

A "claim" is defined in the VA regulations 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).  An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a).  VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

The March 2013 rating decision on appeal granted service connection for schizophrenia, effective from April 8, 2008.  On his April 2013 notice of disagreement (NOD) the Veteran asserted that the effective date should be January 20, 2001, the date of his original claim for schizophrenia.  In August 2013 the Veteran submitted a statement on another NOD form.  He asserted that there was clear and unmistakable error in the March 6, 2013 rating decision that assigned the April 8, 2008 effective date for service connection for schizophrenia.  The Veteran indicated that he had continuously sought service connection for schizophrenia since January 2001.

The Board recognizes that the Veteran had claimed service connection for a psychiatric disorder for many years prior to April 8, 2008.  However, a November 8, 2006 Board decision denied the Veteran's claim for service connection for a psychiatric disorder.  The Veteran was notified of the November 2006 Board decision and provided notice of his procedural and appellate rights.  He did not initiate an appeal as to this decision; thus, the denial of service connection for a psychiatric disorder became final.  See 38 U.S.C. §§ 511 (a), 7105; 38 C.F.R. §§ 20.302, 20.1100.

The Board has reviewed the record and does not find correspondence or other evidence following the November 2006 final Board decision, and prior to April 8, 2008, that could be reasonably construed as a claim to reopen service connection for a psychiatric disorder.  Thus, the date of the reopened claim is April 8, 2008.

On review, the Veteran is really trying to attack the finality of a prior Board decision.  To the extent he is raising a "freestanding" claim for an earlier effective date, such a claim must be denied.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).  The Board further notes that absent a showing of CUE in the prior Board decision, he cannot receive compensation for a time frame earlier than the date of the claim to reopen.  See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005).  Although the Veteran has asserted that there was CUE in the March 2013 rating decision on appeal, at no time has the Veteran asserted that there was CUE in the November 2006 Board decision.

With regard to the Veteran's assertion that there is CUE in the March 2013 rating decision on appeal, the Board notes that 38 C.F.R. § 3.104 allows revision of an RO decision by an agency of original jurisdiction (AOJ) on the grounds of CUE.  However, the Board has appellate review of a nonfinal rating decision and may deny an appeal based on the preponderance of the evidence rather based on CUE.  See 38 U.S.C. § 5107.  The March 2013 rating decision on appeal is not a final rating decision, but rather an appealed rating decision.  As such, CUE is not the standard of proof before the Board.  As explained above, the Board finds that the preponderance of the evidence is against the Veteran's claim and that the March 2013 rating decision correctly assigned the Veteran an effective date of April 8, 2008 for the grant of service connection for schizophrenia.   

As the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An effective date prior to April 8, 2008, for the grant of service connection for schizophrenia is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs