Citation Nr: 0006191 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-01 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than March 27, 1991, for the grant of service connection for schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from March 1965 to July 1966. This appeal arises from a rating decision of March 1996 from the Muskogee, Oklahoma, Regional Office (RO). The case was certified to the Board of Veterans' Appeals (Board) from the North Little Rock, Arkansas, RO. FINDINGS OF FACT 1. In August 1987, the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. The veteran was notified of this decision and of his appeal rights, and he did not appeal. 2. A claim to reopen the previously denied claim for service connection for a psychiatric disorder was received March 27, 1991. 3. A March 1996 rating decision granted service connection for schizophrenia and assigned a 100 percent disability rating, effective from March 27, 1991. CONCLUSIONS OF LAW 1. The August 1987 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (1999). 2. The claim of entitlement to service connection for schizophrenia was reopened on March 27, 1991. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.160(e) (1999). 3. There is no legal entitlement to an effective date earlier than March 27, 1991, for the award of service- connection for schizophrenia. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background An application for compensation or pension (VA Form 21-526) was received in February 1967. An April 1967 rating decision denied service connection for a nervous condition. The veteran was notified of this decision and of his appeal rights in a letter dated in May 1967 that was subsequently remailed to a different address. He did not initiate an appeal of this decision. An application for compensation or pension (VA Form 21-526) was received in April 1974. A May 1974 rating decision continued the denial of service connection for a nervous condition. A May 1974 letter to the veteran advised him of the decision and informed him of his appeal rights. He did not initiate an appeal of that determination. A memorandum from the veteran's representative, received in July 1987, requested reopening of the claim for service connection for a nervous disorder. An August 1987 rating decision found that there was no new factual basis for service connection for depression. An August 1987 letter to the veteran advised him that based on all of the evidence in the record, no new factual basis for establishing service connection for a nervous condition had been established and the prior denial was continued. He was told of his appeal rights, and he did not initiate an appeal. A statement with attached evidence from the veteran's representative, received on March 27, 1991, requested reopening of the veteran's claim for service connection for schizophrenia. An April 1991 rating decision continued the denial of service connection. The veteran appealed this decision to the Board. A February 1993 decision by the Board found that new and material evidence had not been received. A May 1994 Memorandum Decision by the U.S. Court of Veterans Appeals (now U.S. Court of Appeals for Veterans Claims) (Court) found that new and material evidence had been submitted. A rating decision, dated in March 1996, granted service connection for schizophrenia and assigned a 100 percent disability rating. The effective date was March 27, 1991. II. Legal Analysis The issue of entitlement to an earlier effective date is a matter in which the law, as opposed to the evidence, is dispositive of the issue. The Court has determined that the use of the statutory term "well grounded" should be confined to matters in which the evidence is dispositive. Therefore, in cases such as this, where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994). A finally adjudicated claim is a claim which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (1999). An April 1967 rating decision denied service connection for a nervous condition. The veteran was advised of this decision in May 1967, and he did not file a notice of disagreement. The decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (1999). A reopened claim is any application for a benefit received after final disallowance of an earlier claim or any application based on additional evidence. 38 C.F.R. § 3.160(e) (1999). See 38 U.S.C.A. § 5108 (West 1991). The veteran again applied for benefits in April 1974. This was a reopened claim. 38 C.F.R. § 3.160(e) (1999). A May 1974 rating decision continued the denial of service connection for a nervous condition and a May 1974 letter to the veteran advised him of the decision. He did not file a notice of disagreement. The decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (1999). In July 1987, the veteran's representative requested reopening the service connection claim. An August 1987 rating decision found that there was no new factual basis for reopening the veteran's claim for service connection for depression. The veteran was advised of this decision the same month and told of his appeal rights. He did not file a notice of disagreement. The decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160, 20.302(a) (1999). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). The effective date of a claim received after final disallowance that is reopened based on new and material evidence, other than service records, is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (1999). The effective date of a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r) (1999). The veteran's claims for service connection for a psychiatric disorder were denied by final prior determinations in 1967, 1974, and 1987. On March 27, 1991, the veteran's representative submitted a claim requesting that the claim for service connection be reopened. This claim was initially denied. The veteran then appealed to the Board and then to the Court. The Court found that new and material evidence had been received. The veteran's service connection claim was ultimately granted in a rating decision in March 1996 when service connection for schizophrenia was established with a 100 percent disability rating assigned. The effective date was March 27, 1991. This is consistent with the date of receipt of the claim to reopen the previously disallowed claim for service connection. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400, (q)(1)(ii), (r) (1999). The veteran contends that he was granted a 100 percent service connected disability for the same reason that he was granted non-service connected pension benefits in 1979, and that the effective date should be retroactive to 1979. However, the claims file does not show that any claim was received in 1979. A claim for compensation or pension was received in 1980. A 1981 rating decision does not show that the issue of service connection was addressed but pension benefits were granted. The veteran was not, as he contends, awarded service connected disability benefits for the same reason that he was awarded pension in 1981. As found by the Court in its May 1994 decision, new and material evidence was received and the veteran's claim for service connection was then reopened. This claim was ultimately granted with an effective date of March 27, 1991, the date of receipt of the new and material evidence that led to the reopening of the claim. Since the effective date of a claim that is reopened based on new and material evidence received after final disallowance is the date of receipt of the claim, the RO correctly determined the effective date of March 27, 1991. 38 C.F.R. § 3.400(q)(1)(ii) (1999). Based on the above, the veteran is not entitled to an earlier effective date for the award of 100 percent service connected disability benefits for schizophrenia. 38 U.S.C.A. §§ 5110, 7105 (West 1991); 38 C.F.R. §§ 3.160, 3.400, 20.302(a) (1999). ORDER Entitlement to an earlier effective date for the award of 100 percent service connected disability benefits for schizophrenia is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals