Citation Nr: 1803294	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  16-09 280	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to an effective date, prior to November 29, 1989, for the assignment of a 100 percent rating for schizophrenia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from January to September 1978. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. In February 1998, the Board granted an effective date of November 29, 1989, for the assignment of a 100 percent rating for schizophrenia; the Veteran did not appeal or request reconsideration of the Board's decision. 

2. The Veteran's contention that the Veteran is entitled to an effective date prior to November 29, 1989, for the assignment of a 100 percent rating for schizophrenia amounts to a freestanding claim for an earlier effective date.


CONCLUSION OF LAW

The Veteran's claim for an effective date prior to November 29, 1989, for the assignment of a 100 percent rating for schizophrenia, is legally precluded.  38 U.S.C.A. §§ 5110(a), 7104(b) (West 2014); 38 C.F.R. §§ 3.400, 20.1100 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, the effective date of an evaluation and award based on an original claim, a claim for increase, or a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  
The Veteran contends that he is entitled to an earlier effective date, prior to November 29, 1989, for the award of a 100 percent increased rating for schizophrenia.  See February 2013 Notice of Disagreement; November 2017 Appellate Brief.  He also asserts that he is entitled to an effective date of September 27, 1978, the date his entitlement to service connection arose.  See April 2016 Statement of Accredited Representative in Appealed Case.  

In a February 1998 decision, the Board granted the Veteran an effective date of November 29, 1989, for a total schedular disability rating for his service-connected schizophrenia.  The Board decision became final based on the evidence of record.  In March 1998, the RO implemented the effective date of November 29, 1989, assigned by the Board. 

Most recently, the Veteran requested to reopen his earlier effective date claim on May 21, 2012.  In July 2012, the RO continued an August 2009 rating decision that denied an earlier effective date.  The Veteran timely appealed.   

The Board recognizes that the RO has characterized the Veteran's appeal of the July 2012 rating decision as entitlement to an earlier effective date for the evaluation assigned to the Veteran's service-connected schizophrenia.  In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), however, the United States Court of Appeals for Veterans Claims (Court) held that once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed Board decision.  The Court noted that any other result would vitiate the rule of finality.  After a Board decision becomes final, an earlier effective date may only be established by a motion for reconsideration or motion for revision based on clear and unmistakable error (CUE).  See Rudd supra.  Here, neither the Veteran nor his representative have alleged CUE with the Board, rather, the Veteran stated that he disagreed with the assigned effective date for his service-connected schizophrenia.  As such, the Board cannot accept the Veteran's freestanding claim for an earlier effective date in an attempt to overcome the finality of the February 1998 Board decision.  Furthermore, the February 1998 Board decision is not subject to review by the RO.  See 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").

Accordingly, to the extent that the Veteran has improperly raised a freestanding claim for an earlier effective date in attempt to overcome the finality of the February 1998 Board decision, the appeal must be dismissed.  See Rudd supra.


ORDER

Entitlement to an effective date, prior to November 29, 1989, for the assignment of a 100 percent rating for schizophrenia is dismissed.




____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs