Citation Nr: 0007183 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 97-29 470A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date earlier than May 31, 1978, for the grant of service connection and assignment of a total rating for paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from August 31, 1972, to November 16, 1976. This appeal arises from an October 1996 determination of the Providence, Rhode Island, regional office (RO) that denied a claim for an effective date earlier than May 31, 1978, for the award of service connection and a total rating for paranoid schizophrenia. In October 1999, the RO indicated in a supplemental statement of the case that its action on the effective date question included consideration of whether there was clear and unmistakable error (CUE) in the November 1978 rating decision that assigned the May 31, 1978, effective date. The Board's analysis below addresses this question too. FINDINGS OF FACT 1. On May 31, 1978, the RO received for the first time an original claim of service connection for psychiatric disability. 2. By a November 3, 1978, rating action, the RO granted service connection for paranoid schizophrenia and assigned a total rating for this disability, effective from May 31, 1978. No later than November 14, 1978, the RO sent notice of this decision and of procedural and appellate rights to the veteran. No appeal ensued. 3. The veteran has not sufficiently alleged error in fact or law in the November 1978 rating decision that established May 31, 1978, as the effective date for the award of service connection and a total rating for schizophrenia. CONCLUSION OF LAW The assignment of an effective date earlier than May 31, 1978, for the award of disability compensation benefits for schizophrenia is not warranted. 38 U.S.C.A. §§ 5110, 7105(c) (West 1991); 38 C.F.R. §§ 3.105, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law governing the assignment of an effective date for an award of disability compensation is contained in 38 U.S.C.A. § 5110(b)(1) (West 1991), which provides: The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. See also 38 C.F.R. § 3.400(b)(2) (1999) (to the same effect); 38 U.S.C. § 3010(b)(1) (1976). Otherwise, in cases where the application is not filed until more than one year from release of service, the effective date will be date of receipt of the claim, or the date entitlement arose, whichever is later. Id. Through application of the law and regulations described above, the RO set May 31, 1978, as the effective date for the award of disability compensation for the veteran's service- connected schizophrenia. This was so because the veteran did not file a claim for service connection for a psychiatric disability within one year of his release from service, which release was on November 16, 1976. Such a claim was not filed until May 31, 1978, when he filed his first ever claim with VA for compensation benefits. The assignment of May 31, 1978, as the effective date for the award of service-connected compensation benefits was made by the RO in November 1978. However, no appeal of this decision was initiated by the veteran. An appeal to the Board consists of a timely filed notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. See 38 U.S.C.A. §§ 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). A NOD must be filed within one year from the date of mailing of the notice of the determination. See 38 U.S.C.A. § 7105(b)(1) (West 1991); see also 38 C.F.R. § 20.201 (1999). A substantive appeal must be filed within 60 days from the date the SOC is mailed, or within the remainder of the one-year period from the date of mailing of the notice of determination, whichever occurs later. 38 U.S.C.A. § 7105(d)(3) (West 1991) and 38 C.F.R. §§ 20.302(b), 20.303 (1999); see also 38 C.F.R. § 20.202 (1999). These requirements were the same in November 1978. See 38 C.F.R. § 19.118 (1978). Whether the November 1978 decision was a final, unappealed rating decision is a question that must be addressed before discussing the CUE aspects of this claim. This is so because an appealed rating decision, or one which has not become final because of a failure to notify the veteran of the adverse decision, is not subject to CUE analysis. (In other words, if notice was never sent to the veteran, the question of CUE would not need to be addressed because the 1978 rating decision would not have become a final, binding rating decision as contemplated by 38 C.F.R. § 3.105(a) (final and binding rating decisions are accepted as correct in the absence of CUE).) No copy of a notification letter appears in the claims file immediately following the November 1978 rating decision. However, a VA Form 21-6798, Disability Award, form appears which indicates that an award letter was prepared. The form also indicates the effective date of the award. Presumably, the appellant was sent such a letter in accordance with regular procedures. Evans v. Brown, 9 Vet.App. 273 (1996) (there is a presumption of regularity that applies to the mailing of RO determinations). The result is that, given the notification which may be presumed, the veteran's failure to appeal rendered the November 1978 action final and binding as contemplated by § 3.105(a). Consequently, the Board concludes that the November 1978 action is now final and may be revised only upon a showing of CUE. § 3.105(a). As suggested above, an effective date may be established sooner than May 31, 1978, if it is shown that the November 1978 rating decision was clearly and unmistakably erroneous. As noted already, there is no suggestion in the record that the veteran filed a claim earlier than May 31, 1978. Nevertheless, the thrust of the veteran's contentions is that the award should have been made the day after his discharge from service; however, this contention does not amount to a valid claim of CUE. If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). The veteran has not alleged error in the November 1978 rating decision that amounts to a viable CUE claim. In short, he has not asserted that facts, as they were known at the time, were overlooked, or that the law or regulations were misapplied. Russell v. Principi, 3 Vet.App. 310, 313 (1992). He merely claims that application of the law requires the assignment of the day following his discharge from service as the effective date for the award of compensation. Such an allegation is not viable because of the clear standard set by the law, namely that the effective date may not be assigned earlier unless the claim was received earlier. Consequently, the Board finds that the veteran's allegation of CUE is not legally sufficient. Given that the November 1978 rating decision is a final and binding action, and because no valid claim of CUE has been presented, an earlier effective date for the award service connection and a total rating for schizophrenia is not warranted. ORDER An effective date earlier than May 31, 1978, for the award of service connection and a total rating for schizophrenia is denied. MARK F. HALSEY Member, Board of Veterans' Appeals