Citation Nr: 1010657 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 07-02 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an effective date prior to June 10, 1997 for an award of dependency and indemnity compensation (DIC) and for eligibility for Dependents' Education Assistance (DEA) based on a grant of a claim for service connection for the cause of Veteran's death reopened on June 10, 1997. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from February 1952 to January 1975. He died in November 1983. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. In an August 1997 rating decision, the RO granted service connection for the cause of the Veteran's death, and eligibility for Dependents' Educational Assistance, effective June 10, 1997, the date of receipt of the appellant's claim to reopen a previously denied claim. 2. In a June 1999 decision, pursuant to an appeal of the August 1997 rating decision, the Board denied an effective date prior to June 10, 1997 for award of Dependency and Indemnity Compensation (DIC) benefits and eligibility for Dependents' Educational Assistance (DEA) resulting from a claim of entitlement to service connection for the cause of the Veteran's death. 3. The June 1999 Board decision was not appealed, and a motion for reconsideration of the June 1999 Board decision was denied in July 2000. 4. In September 2004, VA received the appellant's request for an effective date earlier than June 10, 1997 for DIC benefits and eligibility for DEA. CONCLUSION OF LAW Because the June 1999 Board decision which denied an effective date prior to June 10, 1997 is now final, the appellant's freestanding claim for an earlier effective date for an award of DIC and for eligibility for DEA based on a grant of service connection for the cause of Veteran's death, must fail as a matter of law, and the appeal is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Duty to Notify & Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes, as set forth in more detail below, the facts in this case are not in dispute and the appellant's appeal must be dismissed as a matter of law. Thus, the VCAA is not applicable in this case. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Neither the appellant nor her representative has argued otherwise. See also VAOPGCPREC 5- 2004 (holding that under 38 U.S.C. § 5103(a), VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Legal criteria Finality Unappealed Board decisions are final on the date stamped on the face of the decision, in the absence of clear and unmistakable error (CUE), and are not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156. A Board decision under chapter 38 is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109A. The Court of Appeals for Veterans Claims (Court) has held that there is no such procedure as a freestanding challenge to the finality of a VA decision. See DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). The Court has also held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When the Board affirms a decision of an RO, the RO determination "is subsumed by the final appellate decision" pursuant to 38 C.F.R. § 20.1104. The effect of subsuming is that, as a matter of law, no claim of CUE can exist with respect to that RO decision. See 38 C.F.R. § 20.1104; Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998); Donovan v. West, 158 F. 3d 1377 (Fed. Cir. 1998); Chisem v. Gober, 10 Vet. App. 526, 528 (1997). Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For claims of a service-connected death after separation from service, the effective date is the first day of the month in which the Veteran's death occurred if claim is received within one year after the date of death; otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (c)(2). For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date (EED) under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447 (2004), aff'd Leonard v. Principi, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). Consistent with the above-described prior case law, the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because proper effective date for an award based on claim to reopen could be no earlier than date on which that claim was received, only a request for revision based on clear and unmistakable error could result in assignment of an earlier effective date. Analysis The Board has reviewed all of the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, in January 1984, the appellant filed a claim for service connection for the cause of the Veteran's death. This claim was denied by the RO in January 1984. It was subsequently appealed to the Board, which denied the claim in May 1985. Subsequently, the appellant filed several claims to reopen, and such claims were denied by the Board in November 1988, June 1990, and March 1995. In August 1997, the RO granted the appellant's claim for service connection for the cause of the Veteran's death and Chapter 35 benefits, effective from June 10, 1997, the date upon which the appellant had filed the reopened claim. The appellant appealed the August 1997 rating decision as to the effective date assigned. In a June 1999 decision, the Board denied the appeal of the August 1997 rating decision for an effective date prior to June 10, 1997. In July 2000, a motion for reconsideration of the June 1999 Board decision was denied, and the June 1999 Board decision was not appealed. There has been no allegation or finding of CUE in the June 1999 Board decision. As such, the June 1999 Board decision is final. 38 U.S.C.A. § 7104. Additionally, as noted above, when the Board affirms a decision of an RO, the RO determination "is subsumed by the final appellate decision" pursuant to 38 C.F.R. § 20.1104. As such, the August 1997 rating decision is subsumed by the June 1999 Board decision, and as such, no claim of CUE can exist with respect to that RO decision. See 38 C.F.R. § 20.1104; Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998); Donovan v. West, 158 F. 3d 1377 (Fed. Cir. 1998); Chisem v. Gober, 10 Vet. App. 526, 528 (1997). In May 2002, the appellant filed a claim for an effective date prior to June 10, 1997; the RO denied the claim in September 2002. The Board notes that VA had no authority to adjudicate this freestanding earlier effective date (EED) claim. The Court has held once a decision assigning (or affirming on appeal) an effective date has become final, as is the case here with the June 1999 Board decision which affirmed the August 1997 rating decision assignment of an effective date of June 10, 1997, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed (Board) decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Court reasoned that to allow such claims would vitiate the rule of finality. Id. (The Board notes that the Court's decision in Rudd was subsequent to the June 1999 Board final denial; however, the rules regarding finality were in effect in 1999 and remain in effect.) In September 2004, the appellant filed a statement with VA, which VA construed as an informal claim for entitlement to an EED prior to June 10, 1997. The RO subsequently denied the claim in April 2005. Again, the Board notes that VA had no authority to adjudicate this free standing EED claim. Id. The Board also notes that the appellant has apparently alleged clear and unmistakable error in the prior RO opinions (to include January 1984, August 1986, and September 2002). The Board notes that the March 1995 Board denial of entitlement to service connection for the cause of the Veteran's death, which was a final decision, subsumed the prior RO decisions on the same issue. A CUE claim may not be raised against the subsumed prior RO decisions. In addition, as noted above, the September 2002 RO decision was not a properly adjudicated decision, as VA did not have the authority to adjudicate a free standing EED claim following the prior final June 1999 Board denial. Simply put, the September 2002 RO decision cannot negate the finality of the June 1999 Board decision. In as much as the holding in Rudd precludes a stand alone claim, there cannot be CUE as to the September 2002 decision, which VA did not have the authority to adjudicate. Finally, if the appellant believes that the Board committed CUE in the June 1999 Board decision, the proper way to assert error in a final Board decision would be through an allegation, brought to the Board, that a prior decision of the Board contained CUE. The Board expresses no opinion on the eventual success of such a motion. As VA has no authority to adjudicate a freestanding earlier effective date claim, the appellant's claim must be dismissed. Rudd, supra. ORDER The claim of entitlement to an effective date prior to June 10, 1997 for an award of dependency and indemnity compensation (DIC) and for eligibility for Dependents' Education Assistance (DEA) based on a grant of a claim for service connection for the cause of Veteran's death reopened on June 10, 1997 is dismissed. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs