Robert Firek sought an effective date earlier than July 18, 1988, for a total disability rating based on individual unemployability (TDIU). The Court explained that the veteran’s underlying service-connection history had already been the subject of multiple Board decisions, including an April 1989 reconsideration decision that established the July 18, 1988 effective date after a request for reconsideration was received. Because that reconsideration decision was not timely appealed, the Court held that it was final and could not be collaterally attacked in the later appeal from the Board’s January 1991 denial of an earlier TDIU effective date. The Court further reasoned that the Board could not award TDIU on an effective date earlier than the effective date of service connection for the underlying disability, and that under the governing effective-date regulation the date of receipt of the reconsideration application controlled. The Court therefore granted summary affirmance and affirmed the Board.

A later award of TDIU cannot be effective earlier than the final effective date of the underlying service-connected disability, and an unappealed Board reconsideration decision fixing that date is not subject to collateral attack in a later appeal.

Finality of the underlying service-connection decision can control the earliest possible TDIU effective date. If a claimant wants to challenge that date, the challenge must be directed at the proper final decision within the appeal period.

Firek is useful when the effective date for TDIU depends on the effective date of the service-connected disability that supports unemployability. It reinforces that VA and the Court will not use a later TDIU appeal to reopen or bypass an earlier final Board decision.

Assuming a favorable TDIU finding can automatically reach back behind a final service-connection effective date without first overturning the underlying final decision.

A veteran receives service connection for a back disability effective in 2018, then later wins TDIU and argues for a 2015 effective date based on the same disability. Under Firek, the earlier date generally cannot precede the final effective date for service connection unless that earlier decision is successfully challenged.

Use Firek to oppose attempts to secure an earlier TDIU effective date by attacking a final prior Board decision indirectly. It is also helpful to frame appellate strategy around timely review of the decision that actually fixed the underlying benefit date.

Livingston v. Derwinski, Gilbert v. Derwinski