> **UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No. 01-1505]{.smallcaps}

[Larry E. Leonard, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided February 20, 2004 )

*Kenneth M*. *Carpenter*, of Topeka, Kansas, was on the brief for the
appellant.

*Tim S*. *McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Edward V. Cassidy*, *Jr*., Acting Deputy Assistant
General Counsel; and *Nicole Degraffenreed*, all of Washington, D.C.,
were on the pleadings for the appellee.

Before KRAMER, *Chief Judge*, and IVERS and GREENE, *Judges*.

KRAMER, *Chief Judge*: The appellant appeals through counsel a May 11,
2001, Board of Veterans\' Appeals (Board or BVA) decision that denied an
effective date prior to September 23, 1985, for the award of a rating of
total disability based on individual unemployability (TDIU). Record (R.)
at 8. The appellant and the Secretary have filed briefs, and the
appellant has filed a reply brief. The appeal is timely, and the Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the
reasons that follow, the Court will affirm the May 2001 decision of the
Board.

**I. FACTS**

The appellant served on active duty in the U.S. Army from September 1971
to September 1973. R. at 11. His service medical records reflect that,
in February 1973, he was hospitalized after having been involved in an
automobile accident (*see*, *e.g.*, R. at 22, 27, 112); the diagnoses
were (1) \"\[c\]losed fracture, left tibia and fibula,\" (2) \"\[g\]rade
2 \[acromioclavicular\] separation, right,\" and (3) \"\[c\]erebral
concussion\" (R. at 28). In February 1974, a VA regional office (RO)
granted service connection for a fracture of the left tibia and fibula
with 1/4‑inch shortening, effective September 26, 1973, and assigned a
20% rating; in addition, the RO, inter alia, denied service connection
for residuals of a right-shoulder injury. R. at 154. The appellant
appealed that decision. R. at 156, 164. In a November 1974 decision, the
Board granted service connection for residuals of a right-shoulder
injury and denied a rating in excess of 20% for the appellant\'s
service-connected left-leg disability. R. at 198. That same month, the
RO assigned a 10% rating for the service-connected right-shoulder
condition, effective September 26, 1973. R. at 201. The appellant
appealed the 10% rating assigned for his service-connected
right-shoulder condition and continued to appeal the 20% rating assigned
for his service-connected left-leg disability; the Board, in a June 1977
decision, awarded the appellant a temporary total disability rating from
August 1, 1975, to February 1, 1976, based on postoperative residuals of
left-leg surgery. R. at 352-53. The Board, however, denied entitlement
to increased ratings for his service-connected right-shoulder and
left-leg conditions. *Id*. Following an October 1983 orthopedic
examination, the RO, in December 1983, increased to 30%, effective
November 1, 1983, the appellant\'s rating for his service-connected
left-leg disability. R. at 822.

After the appellant underwent an additional examination, the Board, in
June 1988, granted service connection for (1) organic brain syndrome
with depression and (2) a seizure disorder. R. at 1257. In a December
1988 decision implementing the June 1988 BVA decision, the RO assigned a
40% rating for post-traumatic seizure disorder, effective May 21, 1985,
and a 0% rating for organic brain syndrome, effective August 21, 1985;
the RO also denied a rating of TDIU. R. at 1277. The appellant appealed
the assigned ratings. R. at 1280, 1307, 1315, 1343. Eventually, the BVA,
in a November 1992 decision, increased to 70% his disability rating for
his service-connected organic brain syndrome and awarded him a rating of
TDIU. R. at 1452-53. The RO, in January 1993, assigned an effective date
of May 21, 1985, for the award of service connection for his organic
brain syndrome and an effective date of January 16, 1991, for the award
of his TDIU rating. R. at 1462. In correspondence to the RO dated in
April 1993, the appellant asserted that he \"disagree\[d\] with \[the
RO\'s January 1993\] decision \[to\] award \[him\] a 70% evaluation for
\[his\] service\[-\]connected \[o\]rganic \[b\]rain \[s\]yndrome\" and
that \"the medical evidence of record clearly support\[ed\] a total
evaluation for this condition effective May 21, 1985.\" R. at 1493.
Shortly thereafter, the RO informed the appellant that, because he had
never appealed the November 1992 BVA decision, \"there \[wa\]s no
further action that \[could\] be taken unless \[he\] ha\[d\] new
evidence to show \[that\] an evaluation of more than 70\[% wa\]s
warranted.\" R. at 1496. The appellant then appealed the January 1991
effective date assigned for his TDIU rating. R. at 1498, 1515-17.

The Board, in an August 1994 decision, awarded the appellant an earlier
effective date of September 23, 1985, for his TDIU rating on the basis
that a letter received by the RO on that date \"should properly be
considered the \[appellant\'s\] initial claim for \[a rating of
TDIU\].\" R. at 1535. The Board also concluded that \"nothing else in
the claims files . . . would warrant the assignment of an effective date
prior to September 23, 1985.\" R. at 1536. In correspondence received by
the RO in December 1994, he requested an earlier effective date for his
TDIU rating; he asserted that a Social Security Administration decision
demonstrated that he was totally disabled as of January 1975. R. at
1544. In response, the RO informed him that the Board already had
decided that issue and that he could file a motion for reconsideration
of the Board\'s decision or an appeal to the Court. R. at 1554. In April
1995, the appellant filed a motion for reconsideration with the BVA. R.
at 1590. The Chairman of the Board denied the motion in July 1995, and
the appellant, in December 1995, filed a Notice of Appeal (NOA) with the
Court. R. at 1594. The Court, in a June 1997 opinion, dismissed the
appellant\'s appeal for lack of jurisdiction on the basis that he had
failed to file a timely NOA; specifically, the Court concluded that the
appellant had \"failed to timely file both his request for
reconsideration and, following the Chairman\'s decision on that motion,
his NOA.\" R. at 1596.

In correspondence received by the RO in April 1999, the appellant asked
that his \"case be considered due to \[clear and unmistakable error
(CUE)\]\"; he again asserted that he was entitled to an effective date
in 1975 for his TDIU rating. R. at 1666. In March 2000, the BVA found no
CUE in the 1977 Board decision that denied entitlement to a TDIU rating
or in the 1994 BVA decision that granted an effective date of September
23, 1985, for the appellant\'s TDIU rating. R. at 1682, 1687. The
appellant did not appeal that decision. The RO, in May 2000, after
reviewing a VA medical record dated in April 2000, issued a decision
continuing the appellant\'s TDIU rating; the RO concluded that an
effective date earlier than September 23, 1985, was not warranted. R. at
1691. The appellant filed a Notice of Disagreement (NOD) with respect to
that decision; he informed VA that he wanted \"to reopen \[his\] . . .
claim for a total evaluation due to all of \[his\] service\[-\]connected
conditions\" so that he would be granted \"an effective date of
\[September 26, 1973\].\" R. at 1694. He attached a copy of the April
2000 VA medical record that reflected a staff psychiatrist\'s opinion
that \"his inability to learn new material, impairment of recent memory,
\[and\] psychotic relapses under minor stress . . . ha\[d\] made him
unemployable since 1973-4.\" R. at 1695. The RO issued a Statement of
the Case (SOC) (R. at 1700-08), and the appellant perfected an appeal to
the BVA (R. at 1710).

In the May 2001 decision on appeal, the Board denied an effective date
prior to September 23, 1985, for the appellant\'s TDIU rating. R. at 8.
The Board noted that, \"\[a\]lthough the Board\'s August 1994 decision,
which determined that the correct effective date for TDIU was September
23, 1985, became final, applicable law provides that a claim which is
the subject of a prior final decision may nevertheless be reopened upon
presentation of new and material evidence.\" R. at 5. The Board
concluded that, \"\[e\]ven if the appellant had submitted \'new and
material\' evidence regarding his claim, the effective date for the
grant of a TDIU \[rating\] could never be earlier than the date \[that\]
the RO received that claim to reopen . . . .\" R. at 7. The Board
ultimately concluded that, \"absent CUE, there is no factual or legal
basis upon which this appellant could obtain the remedy he seeks, and
his claim must be denied.\" *Id*.

On appeal, the appellant argues that the Board \"failed to comply with
38 C.F.R. § 3.157(b)(1) \[(2003)\]\" (Appellant\'s Brief (Br.) at 14-15)
and \"impermissibly converted the \[RO\'s\] merit determination of the
issue of . . . an earlier effective date for the award of TDIU to a
claim to reopen\" (Appellant\'s Br. at 15). Specifically, he contends
that 38 C.F.R. § 3.157(b)(1) \"is silent regarding the requirement to
submit new and material evidence, and the Board erred by imposing upon
\[him\] such a requirement.\" Appellant\'s Br. at 16. In that regard, he
argues that \"the issue of entitlement to an earlier effective date had
not been previously disallowed\" and that \"the requirement of 38 U.S.C.
§ 5108 was not for application in this case . . . .\" Appellant\'s Br.
at 17. He further contends that the April 2000 VA medical report (R. at
1695) \"was the predicate for the reopening of \[the\] issue \[of\] the
assignment of an effective date without the need for the submission of
any further new and material evidence . . . .\" Appellant\'s Br. at 19.
He also argues that the Board incorrectly applied 38 C.F.R.
§ 3.400(q)(ii) (2003) to his claim and that it instead should have
applied 38 C.F.R. § 3.400(o) (2003). Appellant\'s Br. at 21-24. In this
regard, he argues that his \"underlying claim . . . was \[for\]
entitlement to TDIU, which is in the nature of a claim for an increased
rating.\" Appellant\'s Br. at 23. Finally, he argues that the RO never
issued an SOC after he filed, in April 1993, a timely NOD with respect
to the RO\'s January 1993 decision as to \"the rating assigned \[for\]
the grant of service connection for \[organic brain syndrome\], as well
as the effective date assigned for \[that condition\].\" Appellant\'s
Br. at 25.

The Secretary counters that, \"although under VA regulations the receipt
of the \[April\] 2000 outpatient report could be construed as an
informal claim for an increased rating, its receipt in this case in no
way impacts the appropriate effective date for TDIU because \[the
a\]ppellant already had an effective date earlier than would be provided
by the outpatient treatment report.\" Secretary\'s Br. at 9. In response
to the appellant\'s contention that the Board improperly applied
38 C.F.R. § 3.400(q)(ii), the Secretary asserts that, \"\[a\]bsent a
finding of CUE in the August 1994 \[BVA\] decision, the Board determined
that the proper analysis for determining entitlement to an earlier
effective date was through the submission of new and material
evidence.\" Secretary\'s Br. at 11. Regarding the appellant\'s final
argument, the Secretary contends that the RO construed the April 1993
NOD \"as a disagreement with the disability evaluation assigned for his
condition and not whether the appropriate effective date was assigned.\"
Secretary\'s Br. at 12. In addition, he argues that, even if the Court
construes that NOD as expressing disagreement with the effective date
assigned, that \"would have no bearing on the issue currently before the
Court\" because the effective date for the appellant\'s TDIU rating
already predates \"the 1993 attempt to reopen the claim for an earlier
effective date.\" Secretary\'s Br. at 13.

**II. ANALYSIS**

The determination of the effective date for an award of service
connection based on a reopened claim is governed by 38 U.S.C. § 5110(a),
which provides:

> Unless specifically provided otherwise in this chapter, the effective
> date of an award based on . . . a claim reopened after final
> adjudication . . . shall be fixed in accordance with the facts found,
> but shall not be earlier than the date of receipt of application
> therefor.

*See also* 38 C.F.R. § 3.400(q)(ii), (r) (2003). Under 38 C.F.R.
§ 3.157(a), a report of examination or hospitalization may be accepted
as a claim for benefits if it meets the requirements of 38 C.F.R.
§ 3.157. Pursuant to 38 C.F.R. § 3.157(b), \"\[o\]nce a formal claim for
. . . compensation has been allowed or a formal claim for compensation
\[has been\] disallowed for the reason that the service-connected
disability \[was\] not compensable in degree,\" specified records \"will
be accepted as an informal claim for increased benefits or an informal
claim to reopen.\" Section 3.157(b)(1) provides, inter alia, that the
date of admission or examination at a VA hospital \"will be accepted as
the date of receipt of a claim.\" 38 C.F.R. § 3.157(b)(1).

In the instant case, the August 1994 BVA decision granting the appellant
an effective date of September 23, 1985, for his award of a TDIU rating
and denying an effective date prior thereto (*see* R. at 1536) became
final when it was not timely appealed. *See* R. at 1597; *cf*.
*Rosler v. Derwinski*, 1 Vet.App. 241, 249 (1991) (finality of BVA
decision is abated if motion for BVA reconsideration is filed within
120-day appeal period). *See generally Lapier v. Brown*, 5 Vet.App. 215,
216-17 (1993) (final BVA decision denying earlier effective date is
previous and final disallowance within meaning of 38 U.S.C. § 5108).
Because there are \"only two exceptions to the rule of finality,\" the
appellant was left with only two means by which to overcome the finality
of that decision: (1) Reopening based on the presentation of new and
material evidence or (2) CUE. *Cook v. Principi*, 318 F.3d 1334, 1339
(Fed. Cir. 2002) (en banc). Of the two, only the latter could
conceivably result in an earlier effective date for the award of his
TDIU rating because it is well established that the effective date for
an award based on a claim to reopen is the date of the claim to reopen.
*See Flash v. Brown*, 8 Vet.App. 332, 340 (1995) (\"\[W\]hen a claim to
reopen is successful and the benefit sought is awarded upon
readjudication, the effective date is the date of the claim to
reopen.\"); *see also Sears* *v. Principi*, 16 Vet.App. 244, 246-50
(2002), *aff\'d*, 349 F.3d 1326 (Fed. Cir. 2003). Because in the instant
case the appellant\'s claim to reopen was filed in April 2000 and
because he already has been awarded an effective date of September 23,
1985, any such claim to reopen could not lead to an earlier effective
date. *See Flash*, *supra*; *see also Sears*, *supra*. Moreover, the
instant appeal is not predicated upon CUE, and it should be noted that
the appellant already has waged an unsuccessful CUE attack on the August
1994 Board decision. R. at 1682, 1687. Put differently, to the extent
that the appellant suggests that there has been no prior final
disallowance of his claim for an earlier effective date, that argument
is unavailing (*see Lapier*, 5 Vet.App. at 216-17) and, even if he could
show that 38 U.S.C. § 5108 is inapplicable, that argument does not
provide a basis for overcoming the finality of the August 1994 BVA
decision as to the proper effective date for his TDIU rating (*see
Cook*, 318 F.3d at 1339).

The crux of the instant appeal appears to be, in essence, that VA
regulation 38 C.F.R. § 3.157(b) creates some sort of a third exception
to the rule of finality that assertedly would allow for the appellant\'s
earlier-effective-date claim to be reopened in the absence of new and
material evidence. *See* Appellant\'s Br. at 16 (\"Pursuant to
\[38 C.F.R. § 3.157(b)\], the \[a\]gency was required to reopen the
issue of the \[a\]ppellant\'s entitlement to an earlier effective date.
The regulation is silent regarding the requirement to submit new and
material evidence, and the Board erred by imposing upon the
\[a\]ppellant such a requirement.\"). The appellant cites to no
authority for that proposition, and such an argument flies in the face
of a statutory scheme that clearly allows for the reopening of a
previously and finally disallowed claim exclusively upon the production
of new and material evidence. *See* 38 U.S.C. §§ 7104(b) (\"Except as
provided in section 5108 of this title, when a claim is disallowed by
the Board, the claim may not thereafter be reopened and allowed and a
claim based upon the same factual basis may not be considered.\"), 5108
(\"If new and material evidence is presented or secured with respect to
a claim which has been disallowed, the Secretary shall reopen the claim
and review the former disposition of the claim.\"). Moreover, even if
the appellant were correct in his interpretation of 38 C.F.R.
§ 3.157(b), he has not demonstrated, as the Court has already noted, how
the application of that regulation would result in the award of an
effective date prior to September 23, 1985, for his rating of TDIU. In
this regard, the Court notes that, even if the appellant\'s claim could
be \"reopened\" without the presentation of new and material evidence,
as stated above, the effective date for an award based upon that claim
would be the date of the claim to reopen--in this case, April 2000,
nearly fifteen years later than the current effective date of September
23, 1985. *See Flash*, 8 Vet.App. at 340 (\"\[W\]hen a claim to reopen
is successful and the benefit sought is awarded upon readjudication, the
effective date is the date of the claim to reopen.\"); *see also Sears*,
16 Vet.App. at 246-50.

With regard to the appellant\'s second argument, the Court concludes
that, contrary to the appellant\'s assertions, it is inconsequential
that his underlying claim was for an increased rating. Specifically, the
appellant has failed to demonstrate how the application of 38 C.F.R.
§ 3.400(o) could result in the award of an effective date prior to
September 1985 for the award of his TDIU rating. *See* 38 C.F.R.
§ 3.400(o) (effective date for increased compensation is \"\[e\]arliest
date as of which it is factually ascertainable that an increase in
disability had occurred if claim is received within 1 year from such
date otherwise, date of receipt of claim\").

His third and final argument is also unavailing. The appellant, in his
April 1993 NOD, asserted that he \"disagree\[d\] with \[the RO\'s
January 1993\] decision \[to\] award \[him\] a 70% evaluation for
\[his\] service\[-\]connected \[o\]rganic \[b\]rain \[s\]yndrome\" and
that \"the medical evidence of record clearly support\[ed\] a total
evaluation for this condition effective May 21, 1985.\" R. at 1493. He
now argues that the April 1993 NOD expressed disagreement with the
effective date and the rating assigned for his award of service
connection for organic brain syndrome and that the RO failed to issue an
SOC. Appellant\'s Br. at 24-29. He fails to explain, however, how that
NOD constituted an expression of disagreement with the effective date
assigned considering that the RO already had assigned an effective date
of May 21, 1985, for his award of service connection for organic brain
syndrome. R. at 1462; *see also* 38 C.F.R. § 20.201 (2003) (NOD must
\"express\[\] dissatisfaction or disagreement\" with an RO
determination). Moreover, even assuming that the April 1993 NOD had
expressed disagreement with the effective date assigned for the award of
a 70% rating for the appellant\'s organic brain syndrome and that the RO
had erred insofar as it failed to issue an SOC, the appellant has not
demonstrated how any such error would impact the issue on
appeal--entitlement to an effective date prior to September 23, 1985,
for the award of his TDIU rating. *See* U.S. V[et]{.smallcaps}.
A[pp]{.smallcaps}. R. 28(a)(5) (appellant\'s brief must contain \"an
argument . . . and the reasons for \[them\], with citations to the
authorities . . . relied on\"). In conclusion, as outlined above,
because reopening of the appellant\'s claim could not result in an
effective date earlier than the date of receipt of the reopened claim,
*see Lapier*, 5 Vet.App. at 216‑17, the Court concludes that the
appellant has not demonstrated that the Board erred in concluding that
there was no legal basis for an earlier effective date for the award of
his TDIU rating. *See Sabonis v. Brown*, 6 Vet.App. 426, 429‑30 (1994)
(where law and not evidence is dispositive, claim should be denied or
appeal terminated because of lack of legal merit or lack of entitlement
under law). Accordingly, the Court will affirm the decision on appeal.

**III. CONCLUSION**

Upon consideration of the foregoing, the parties\' pleadings, and the
record on appeal, the May 11, 2001, BVA decision is AFFIRMED.