BVA9505842 
DOCKET NO.  93-13 425     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

Entitlement to an earlier effective date for an award of service
connection and compensation for a low back disability.

REPRESENTATION

Appellant represented by: Marine Corps League

INTRODUCTION

The veteran served on active duty from May 1962 to May 1963.
This case comes to the Board of Veterans' Appeal (Board) from a
decision by a Department of Veterans Affairs (VA) Regional Office
(RO), which assigned February 27, 1991 as the effective date for
an award of service connection and compensation for a low back
disability (payment pursuant to the award was made effective from
March 1, 1991).  The veteran appeals for an earlier effective
date.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran asserts that the effective date for compensation for
his service-connected low back disability should be from the date
in 1975 when he filed his original claim, rather than from the
date in 1991 when he applied to reopen the claim.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that, as a matter of law, the veteran is not entitled to an
earlier effective date for an award of service connection and
compensation for a low back disability.

FINDINGS OF FACT

1.  Service connection for a low back disability was originally
denied in a November 1975 RO decision which was not timely
appealed.

2.  The veteran's application to reopen his claim for service
connection for a low back disability was received by the RO on
February 27, 1991.

3.  A January 1992 Board decision held that the claim was
reopened on the basis of new and material evidence, and the
Board, on  de novo review, granted service connection for a low
back disability.

4.  The RO subsequently awarded service connection and total
compensation benefits for the low back disability, effective from
February 27, 1991 (date of receipt of the reopened claim), with
payment pursuant to the award being effective on March 1, 1991.

CONCLUSION OF LAW

The criteria for an earlier effective date, for an award of
service connection and compensation for a low back disability,
have not been met.  38 U.S.C.A. §§ 5110, 5111 (West 1991); 38
C.F.R. §§ 3.31, 3.400 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The veteran served on active duty from 1962 to 1963.  In July
1975 he filed his initial claim for service connection for a back
disability.  In November 1975 the RO denied the claim and
informed the veteran of the adverse action and of his appellate
rights.  He did not appeal.

On February 27, 1991 the RO received the veteran's application to
reopen the claim for service connection for a back condition.  At
that time and later he submitted post-service evidence concerning
the condition.  The RO denied the application to reopen the claim
and the veteran appealed to the Board.

In a January 1992 decision, the Board found that the veteran had
submitted new and material evidence to reopen the claim, and,
based on a de novo review, the Board granted service connection
for a low back disability.

In an April 1992 decision, the RO implemented the Board decision
to grant service connection, and the RO assigned a 20 percent
compensation rating.  The award of service connection and
compensation was made effective from February 27, 1991, the date
of receipt of the reopened claim.  In subsequent decisions the RO
increased the rating to 100 percent (60 percent plus a total
rating based on individual unemployability), also effective from
February 27, 1991.  Payment, pursuant to the award, was made
effective from March 1, 1991.

Since the January 1992 Board decision which granted service
connection, additional post-service evidence has been added to
the file, concerning the status of the back disability in the
years after service.

II.  Analysis

The veteran claims that service connection and his award of
compensation for a low back disability should be made effective
from the date of his original claim in 1975, rather than from the
date of his reopened claim in 1991.

The relevant facts are not in dispute.  The law, not the
evidence, is dispositive of this case.  The Board holds that, as
a matter of law, there is no entitlement to an earlier effective
date; under the circumstances, the veteran has failed to state a
claim upon which relief can be granted.  See Sabonis v. Brown, 6
Vet.App. 426, 430 (1994).

The RO's 1975 denial of the original claim for service connection
became final when it was not timely appealed, although the claim
was subject to being reopened with new and material evidence.  38
U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156; Manio v. Derwinski, 1
Vet.App. 140 (1991).  The veteran's application to reopen the
claim was received by the RO on February 27, 1991.  The RO denied
the benefit, but a January 1992 Board decision found that the
claim was reopened with new and material evidence, and, following
de novo review, service connection for a low back disability was
granted.

The law unambiguously provides that when a claim is reopened with
new and material evidence consisting of other than service
department records, after a final disallowance, the effective
date of service connection and compensation may be no earlier
than the date of VA receipt of the application to reopen.  38
U.S.C.A. § 5110(a); 38 C.F.R. § 3.400,(q),(r).  The RO assigned
the earliest effective date legally permitted in this case,
February 27, 1991 (date of receipt of the application to reopen),
for the award of service connection and compensation for the low
back disorder.  The RO correctly made payment, pursuant to the
award, effective from March 1, 1991, in accordance with the law
that mandates that the period of payment is to commence on the
first of the month following the month in which the award became
effective.  38 U.S.C.A. § 5111; 38 C.F.R. § 3.31.

For these reasons, the Board holds that the veteran is not
entitled to an earlier effective date for an award of service
connection and compensation for a low back disorder.

ORDER

An earlier effective date for an award of service connection and
compensation for a low back disorder is denied.

          L. W. TOBIN
          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.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.