BVA9504560 DOCKET NO. 90-46 770 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an effective date prior to March 23, 1989 for the grant of a 100 percent rating for paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel REMAND The veteran served on active military duty from June 1969 to March 1973. In a July 1991 decision, the Board of Veterans' Appeals (Board) denied the veteran's claim of entitlement to service connection for schizophrenia, his claim of entitlement to an effective date earlier than December 16, 1986 for the assignment of a 50 percent evaluation for anxiety disorder, and his claim of entitlement to a total rating based on individual unemployability. At the time of this decision, the veteran was service connected for anxiety and rated as 50 percent disabled, effective from December 16, 1986. In August 1992 the United States Court of Veterans' Appeals (Court) granted a Joint Motion for Remand and To Stay Further Proceedings (Joint Motion), vacated the Board's July 1991 decision, and remanded the case for compliance with the agreement between the parties as stipulated in the Joint Motion. Subsequently, in March 1993, the Board remanded the case to the regional office (RO) for further development. After completing the development, the RO, in a September 1993 rating decision, recharacterized the veteran's service-connected psychiatric disorder as paranoid schizophrenia and granted a total rating for this disorder, effective from March 23, 1989, the date that the veteran reopened his claim after a December 1988 decision of the Board. Because the veteran was granted a 100 percent rating for his schizophrenia, the issue of entitlement to a total rating based on individual unemployability was considered moot. In addition, the RO also denied the claim of entitlement to an effective date earlier than December 16, 1986 for the 50 percent evaluation for his psychiatric disorder, based on a finding that a prior decision of the Board was a bar to such benefit. After this rating decision, the only issue remaining for appellate review appeared to be the claim of entitlement to an effective date prior to December 16, 1986 for a 50 percent rating paranoid for schizophrenia. However, in two separate statements dated in October 1993, the veteran specifically stated that he no longer wished to pursue the claim of entitlement to an effective date prior to December 16, 1986 for the 50 percent evaluation for his service-connected psychiatric disorder. Instead, the veteran explained that he was seeking an effective date prior to March 23, 1989, and specifically retroactive to March 1973, for the grant of the 100 percent disability evaluation for his schizophrenia. Despite these requests, the RO failed to adjudicate the claim of entitlement to an earlier effective date for the grant of a 100 percent rating for schizophrenia. According to the supplemental statement of the case, which was furnished to the veteran in February 1994, the RO readjudicated the claim for an earlier effective date prior to December 1986 for the grant of the 50 percent rating. In statements received at the RO after the supplemental statement of the case, the veteran continued to assert that he did not wish to pursue the claim of entitlement to an earlier effective date for the grant of the 50 percent rating but wanted to pursue the issue of entitlement to an earlier effective date for the grant of the 100 percent rating. Significantly, the RO has not adjudicated this claim. In the February 1994 supplemental statement of the case, the RO noted that the veteran had claimed error in a prior Board decision. The RO informed the veteran that a prior final decision of the Board may only be changed by Reconsideration by the Board. The RO noted that the veteran had not submitted to the Chairman of the Board or a designee a written motion for reconsideration which clearly and specifically set forth the alleged obvious errors and had not submitted any new evidence which would warrant review by the RO. Subsequently, in October 1994, the veteran submitted a motion for reconsideration with respect to the claim of entitlement to a 100 percent disability rating for schizophrenia retroactive to March 28, 1973, the date of the veteran's separation from service. However, because the RO has not considered this issue, the motion for reconsideration is premature. In considering the claim of entitlement to an effective date prior to March 23, 1989 for the grant of a 100 percent disability rating for paranoid schizophrenia, the RO will not be able to consider the question, as the veteran has requested, of whether he is entitled to a 100 percent disability rating for paranoid schizophrenia since March 1973. A review of the claims folder indicates that in a January 1974 rating decision the RO granted service connection for an anxiety reaction and rated the disorder as 10 percent disabling, effective from March 1973. In a January 1979 rating decision, the RO reduced this evaluation to a noncompensable level, effective from April 1979. In December 1980, the Board granted a restoration of the 10 percent rating for this service-connected disorder. According to a January 1981 rating decision, the RO implemented the restoration of the 10 percent evaluation. In a May 1983 rating decision, the RO granted a disability rating of 30 percent, effective from November 1982, for the veteran's anxiety reaction. Subsequently, in August 1985, the Board denied the claim of entitlement to a disability evaluation greater than 30 percent for an anxiety reaction. In December 1988 the Board granted a 50 percent disability rating for the veteran's anxiety reaction and also denied the claim of entitlement to a disability evaluation greater than 30 percent for anxiety reaction retroactive to March 1973. According to the February 1989 rating decision which implemented the December 1988 decision of the Board, the effective date of the grant of the 50 percent evaluation is December 16, 1986. After a claim has been disallowed by the Board, it may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b) (West 1991). Decisions of the Board are final unless the Chairman orders reconsideration of the case. 38 U.S.C.A. § 7103(a) (West 1991). Consequently, in the present case, with regard to the claim of entitlement to an effective date prior to March 23, 1989 for the grant of a 100 percent rating for paranoid schizophrenia, the RO can only consider the time frame between August 1985 (when the Board denied a rating in excess of 30 percent for the veteran's service connected psychiatric disorder) and March 23, 1989. The December 1988 Decision of the Board affirmed prior denials of a rating in excess of 30 percent but did not provide an effective date for the 50 percent rating which was granted in that decision. The December 1988 decision is a bar to rating exceeding 50 percent prior to the date of the decision. The December 1988 decision of the Board is not a bar to a rating of 50 percent subsequent to the last prior final rating; nor is it a bar to a rating exceeding 50 percent subsequent to the date of that decision. The veteran is not entitled to an effective date earlier than December 1988 for the grant of the 100 percent disability rating for his paranoid schizophrenia unless he successfully pursues a motion for reconsideration of this decision. The issue of entitlement to an effective date earlier than March 23, 1989 for the grant of a 100 percent disability rating has not been developed for appellate review. In logical sequence, this claim must take precedence over any motion for reconsideration that the veteran may raise with respect to the December 1988 or the August 1985 Board decisions. The Board concludes that further assistance to the veteran is required. Accordingly, the case is REMANDED to the RO for the following: The RO should review all of the claims file and formally adjudicate the claim of entitlement to an effective date prior to March 23, 1989 for the grant of a 100 percent disability rating for paranoid schizophrenia. In adjudicating this claim, the RO should undertake any additional development deemed necessary. Furthermore, in the rating decision, the RO should provide complete rationale for its decision. Following completion of these actions, and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. The supplemental statement of the case should set out all of the legal criteria governing the effective dates of awards of increased ratings, as well as those governing the finality of rating and appellate decisions. When the above is completed, the veteran should be advised that he can refile a motion for reconsideration of the December 1988 and August 1985 Board decisions. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. The purpose of this REMAND is to meet due process considerations. No action is required of the veteran until further notice is issued. GEORGE R. SENYK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).