Citation Nr: 0605355	
Decision Date: 02/24/06    Archive Date: 03/01/06

DOCKET NO.  04-20 474A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance 
Center in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an effective date prior to March 25, 1994, for 
the grant of a 60 percent disability rating for a low back 
disability.


REPRESENTATION

Appellant represented by:	Pennsylvania Department of 
Military and Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

D. L. Wight, Counsel


INTRODUCTION

The veteran served on active duty from September 1955 to 
April 1965 and from February 1980 to April 1984.

This case comes to the Board of Veterans' Appeals (Board) on 
appeal of an October 2002 rating decision rendered by the 
Philadelphia, Pennsylvania, Regional Office and Insurance 
Center (RO) of the Department of Veterans Affairs (VA).  In 
August 2005, the veteran testified at a videoconference 
hearing before the undersigned Veterans Law Judge.  A 
transcript of the hearing has been associated with the claims 
folders.

At his August 2005 hearing, the veteran indicated that he 
wished to withdraw his appeal of the denial of an earlier 
effective date for the grant of service connection for a low 
back disability.  The Board will limit its consideration 
accordingly.


FINDINGS OF FACT

1.  By unappealed rating decision in May 1995, the RO awarded 
a 60 percent evaluation for the veteran's low back disability 
effective from March 25, 1994.   

2.  The veteran's pleadings to date do not raise a valid 
claim of clear and unmistakable error (CUE) in the May 1995 
rating decision assigning an effective date of March 25, 
1994, for the 60 percent evaluation or in any earlier final 
rating decision evaluating the disability as less than 60 
percent disabling. 




CONCLUSIONS OF LAW

1.  The May 1995 rating decision assigning an effective date 
of March 25, 1994, for a 60 percent evaluation for low back 
disability is final.  38 U.S.C.A. § 7105(c) (West 2002); 
38 C.F.R. §§ 3.160(d), 20.302(a) (2005).  

2.  The Board does not have jurisdiction to adjudicate the 
issue of whether an earlier effective date for a 60 percent 
evaluation is warranted on the basis of CUE.  38 C.F.R. 
§§ 3.105(a), 20.201, 20.202 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Board notes that 38 U.S.C.A. 
§§ 5103, 5103A (West 2002), and 38 C.F.R. § 3.159 (2005), 
which relate to VA's duties to notify and assist a claimant, 
are not applicable to the veteran's claim for an earlier 
effective date because the law is dispositive and there is no 
additional evidence that could be obtained to substantiate 
the claim.  See VAOPGCPREC 5-2004 (June 23, 2004); Livesay v. 
Principi, 15 Vet. App. 165, 178-79 (2001).

Evidentiary Background

Service connection for a low back disability was granted by 
rating decision dated in October 1984.  A 20 percent 
disability evaluation was initially assigned effective from 
April 1984.  

In December 1986, the veteran filed a claim for an increased 
disability evaluation for his low back disability.  A rating 
in excess of 20 percent was denied by rating decision in July 
1987.  The veteran perfected an appeal of this decision.  In 
June 1988, the Board denied an increased rating for this 
disability.

Since the 1988 Board decision, the veteran has sought an 
increased rating on several occasions.  Unappealed rating 
decisions in February 1991 and April 1991 denied an increased 
rating for the veteran's low back disability.  

In March 1993, the veteran submitted a statement asserting 
that his back disability was rapidly worsening and that he 
desired an increased rating.  In a letter dated in July 1993, 
the St. Petersburg, Florida, RO informed the veteran that his 
claim had been denied.  The veteran was informed of his 
appellate rights.  The evidence does not show that the 
veteran filed a notice of disagreement with this decision.  

On March 25, 1994, the RO received a statement from the 
veteran asserting that an increased rating was warranted for 
his low back disability.  

In an October 1994 statement, the veteran reported that he 
was fired from a job at Sam's Club in February 1994.  He 
noted that he had worked in pain and wore his back brace 
almost constantly, but never missed a day of work due to his 
back.  He noted that he often moved heavy displays or 
shoveled heavy snow without help.  

Following the receipt of VA outpatient treatment records 
dated in June 1994 and later and the report of a VA 
examination in December 1994, the RO entered a May 1995 
rating decision awarding a 60 percent disability evaluation 
for the veteran's low back disability, effective March 25, 
1994.  The veteran was informed of the decision and his 
appellate rights but did not file a timely notice of 
disagreement with this decision.  

In April 2001, the veteran, through his representative, 
submitted a claim for an earlier effective date for the 60 
percent evaluation assigned for his low back disability.  It 
was asserted that the veteran suffered from excruciating back 
pain for 10 years prior to his surgery in 1995.  Attached to 
this statement was a March 2001 statement from Dr. V. 
Benjamin Nakkache, a private neurosurgeon.  Dr. Nakkache 
expressed his belief that the veteran's surgery for his back 
condition was indicated prior to 1995.  

At his hearing before the Board, the veteran contended in 
essence that an earlier effective date for the grant of a 60 
percent disability evaluation was warranted as surgery should 
have been performed long before 1995.  The veteran's 
representative conceded that the effective date for the grant 
of service connection was correctly assigned.  The veteran 
acknowledged that he was not seeking an earlier effective 
date for the grant of service connection for his low back 
disability.  When asked if he agreed to consider that issue 
withdrawn from his appeal, he replied "that's fine."  


Legal Criteria

The effective date of an increased disability rating is the 
earliest date that it is factually ascertainable that an 
increase in disability had occurred, if the application for 
an increased evaluation is received within one year from that 
date.  Otherwise, it is the later of the date of receipt of 
claim or the date entitlement arose.  38 U.S.C.A. § 
5110(a)(b)(2); 38 C.F.R. § 3.400(o).  

Prior decisions of the Board and unappealed decisions of the 
RO are final and may be reopened only upon receipt of 
additional evidence which, under applicable statutory and 
regulatory provisions, is both new and material so as to 
warrant revision of the previous decision.  38 U.S.C.A. 
§§ 5108, 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103.  An appeal 
consists of a timely filed notice of disagreement in writing 
and, after a statement of the case has been furnished, a 
timely filed substantive appeal.   38 C.F.R. § 20.200.  The 
notice of disagreement must be filed within one year from the 
date that the agency of original jurisdiction (RO) mails 
notice of the determination to the claimant.  Otherwise, that 
decision becomes final.  38 C.F.R. § 20.302. 

A final and binding agency decision shall not be subject to 
revision on the same factual basis except by duly constituted 
appellate authorities or except on the basis of CUE, as 
provided in 38 C.F.R. § 3.105 of this part. 38 C.F.R. § 
3.104(a) (2005).  If a claimant 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 clear and unmistakable error 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, 43-44 (1993).


Analysis

The veteran has asserted that an earlier effective date is 
warranted for the grant of a 60 percent evaluation for his 
service-connected low back disability.  Following the 1988 
Board denial of an increased rating, the veteran failed to 
file a notice of disagreement with rating decisions dated in 
February 1991 and April 1991 as well as a denial of his 
claims for an increased rating in July 1993 and a rating 
action awarding a 60 percent evaluation in May 1995.  The 
Board notes that the veteran filed his claim for an earlier 
effective date in April 2001.  As this claim was received 
more than one year following notification of the May 1995 
rating decision, it may not be construed as a notice of 
disagreement with the prior decision. Accordingly, the prior 
decisions of the RO including the May 1995 rating decision 
are final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 
3.160(d), 20.302(a) (2005).

As the prior decisions of the RO are final, an earlier 
effective date for the 60 percent evaluation is not warranted 
in the absence of CUE in one or more of the final decisions.  
The Board notes that the veteran, in an attempt to establish 
an earlier effective date for the award of a 60 percent 
evaluation, has submitted a March 2001 statement from his 
physician noting that back surgery was indicated prior to 
1995.  However, as noted above, in order to allege CUE there 
must be some degree of specificity as to what the alleged 
error is.  The veteran has not alleged any error in the prior 
adjudication of the effective date assigned for his 60 
percent disability evaluation.  The 2001 statement from his 
physician clearly was not of record when the veteran's claim 
was adjudicated in May 1995.  As such, it cannot serve to 
establish CUE in that decision.  See Pierce v. Principi, 240 
F.3d 1348 (Fed. Cir. 2001).  (CUE claims are limited to a 
review of the evidence of record at the time of the 
challenged rating action).  The veteran's mere disagreement 
with how the facts were weighed and evaluated "can never 
rise to the stringent definition of CUE."  Fugo, 6 Vet. App. 
at 44.

Based on the foregoing, the Board must deny the veteran's 
appeal of the denial of an effective date prior to March 25, 
1994, for the grant of a 60 percent disability rating for a 
low back disability.


ORDER

Entitlement to an effective date prior to March 25, 1994, for 
the grant of a 60 percent disability rating for a low back 
disability is denied.




____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals



 Department of Veterans Affairs



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