Citation Nr: 0810394 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-12 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than May 15, 1979, for the award of a 20 percent rating for residuals of a right knee injury and the award of a separate 10 percent rating for arthritis of the right knee. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from January 1955 to December 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that rating decision, the RO denied entitlement to an effective date earlier than May 15, 1979, for the award of a 20 percent rating for residuals of a right knee injury and the award of a separate 10 percent rating for arthritis of the right knee. The veteran's disagreement with that decision led to this appeal. The veteran testified at a hearing held at the RO in November 2007. FINDINGS OF FACT 1. In a May 1957 rating decision the RO granted service connection for residuals of a right knee injury and assigned a noncompensable rating effective from the day following the veteran's separation from service, and in a March 1958 rating decision, the RO continued the noncompensable rating. The RO provided notice of those decisions and informed the veteran of his appellate rights, but there is no record that the RO received a notice of disagreement as to either decision. 2. The veteran filed a claim for an increased rating for this right knee disability on October 23, 1989, and the RO granted a 10 percent rating effective that date. 3. The veteran disagreed with the rating and the October 1989 effective date, and during the course of the appeal the veteran argued he previously submitted a timely notice of disagreement with the May 1957 rating decision. The appeal continued, and during the course of the appeal the RO, in a June 1996 rating decision, granted a 20 percent rating for instability of the right knee effective May 15, 1979, and in an August 1997 rating decision awarded a separate 10 percent rating for arthritis of the right knee effective from May 15, 1979. In December 1997, the RO received a signed statement from the veteran in which he said he was satisfied with the current decisions and requested that his substantive appeal be withdrawn. 4. In March 2005, the veteran filed a claim requesting the rating for his right knee be from 1957 when he filed his claim for disability; this statement is a freestanding claim for an effective date earlier than May15, 1979, for the 20 percent rating for residuals of a right knee injury and the 10 percent rating for right knee arthritis. CONCLUSION OF LAW The veteran's March 2005 claim for an earlier effective date seeks an effective date for benefits in a manner not authorized by law. 38 U.S.C.A. §§ 5110(a), 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160, 20.204, 20.302, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset of this decision, the Board finds that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 to 5107 (West 2002)) are not applicable to this claim on appeal because the appeal turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The United States Court of Appeals for Veterans Claims (Court) found in Manning that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error. The holding of the Court in Rudd v. Nicholson, 10 Vet. App. 296 (2006) dictates that the veteran's claim for an earlier effective date must fail. In a May 1957 rating decision the RO granted service connection for residuals of a right knee injury and assigned a noncompensable rating effective from the day following the veteran's separation from service, and in a March 1958 rating decision, the RO continued the noncompensable rating. The RO provided the veteran notice of those decisions and informed him of his appellate rights, but there is no record that the RO received a timely notice of disagreement as to either decision, and those decisions became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The veteran filed a claim for an increased rating for this right knee disability on October 23, 1989, and the RO granted a 10 percent rating effective that date. The veteran disagreed with and perfected his appeal as to the rating and the October 1989 effective date. Prior to transfer of the case to the Board, the RO increased the rating for the right knee to 20 percent from October 23, 1989. The appeal continued, and in February 1993, the Board remanded the case to the RO for additional development. While the claim was in remand status, the veteran submitted a copy of a handwritten letter, which he stated was a copy of the appeal he filed in June 1957. The veteran stated that the appeal was handwritten and at the time he made the appeal he made a handwritten copy and pointed out that photocopiers were not then available. He asserted that although he mailed the document, it was lost and never ruled on. He argued that because he sent this appeal, his disability rating should be retroactive to the date he filed his original claim. The case was returned to the Board, and in a decision dated in August 1994, the Board, in pertinent part, denied a rating in excess of 20 percent for the veteran's right knee disability and denied an effective date earlier than October 23, 1989, for the award of the 20 percent rating. The veteran appealed to the Court, and in an order dated in December 1995, the Court vacated the Board's August 1994 decision and remanded the claims to the Board. The Board remanded the case to the RO, and in a June 1996 rating decision, the RO, in pertinent part, granted an effective date of May 15, 1979, for the 20 percent rating for the right knee disability. In a July 1996 letter to the veteran, the RO stated this action was considered a grant of the benefit sought on appeal insofar as the issue of entitlement to an earlier effective date was concerned. The RO further stated it had deferred the claim for an increased rating until it received the results of a VA examination. Thereafter, in a rating decision dated in August 1997, the RO, in pertinent part, continued the 20 percent rating for residuals of a right knee injury effective May 15, 1979, and awarded a separate 10 percent rating for arthritis of the right knee effective May 15, 1979. In a letter dated in December 1997, among other things, the RO explained to the veteran that it had found his right knee injury had increased from a single 20 percent evaluation to a 20 percent evaluation for findings of anterior and medial laxity and a separate 10 percent evaluation for arthritis, effective May 15, 1979. On a VA Form 21-4138, Statement in Support of Claim, signed by the veteran and received at the RO in December 1997, the veteran stated, "I am satisfied with the current decisions. Please withdraw my substantive appeal." The veteran did not later file a notice of disagreement within a year of the December 1997 notice, and, having withdrawn his substantive appeal, the June 1996 and August 1997 rating decisions became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.204, 20.302, 20.1103, 3.160. In March 2005, the veteran filed a letter at the RO stating he was still asking for his rating to be from 1957 when he filed for a disability, and not from the date he finally received. Neither the veteran nor his representative has raised a contention that the RO committed clear and unmistakable error (CUE) in the May 1957 rating decision (which assigned an initial noncompensable rating for residuals of a right knee injury) , the March 1958 rating decision (which continued the noncompensable rating), the June 1996 rating decision (which assigned May 15, 1979, as the effective date for a 20 percent rating for instability of the right knee), or in the August 1997 rating decision (which continued the 20 percent rating effective from May 15, 1979 and awarded a separate 10 percent rating for arthritis of the right knee effective from May 15, 1979). The veteran's March 2005 statement seeking an earlier effective date for the current disability ratings for his right knee is essentially a claim for retroactive benefits. 38 U.S.C.A. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). For the reasons outlined above, the May 1957, March 1958, June 1996, and August 1997 rating decisions became final. Because of this, the veteran could only obtain an effective date earlier than May 15, 1979, for the 20 percent rating for right knee instability and the separate 10 percent rating for right knee arthritis by showing CUE in the May 1957 or March 1958 rating decisions as to the noncompensable rating assigned or by showing that the June 1996 and August 1997 rating decisions as to effective date were a product of CUE. As noted above, no such claim has been made by the veteran or his representative. Rather, the veteran has pointed out that his right knee condition received considerable treatment in service and that his early post-service medical records show significant symptoms; he also repeats the argument made prior to the June 1996 and August 1997 rating decisions to the effect that VA is not taking into consideration that he first started his appeal in 1957 or 1958, but he believes his appeal was lost. To the extent that the veteran intended his March 2005 statement to be a "freestanding" claim for an earlier effective date, "such a possibility vitiates the rule of finality." Rudd, 20 Vet. App. at 300. A freestanding claim for an effective date earlier than May 15, 1979, for the 20 percent rating for residuals of a right knee injury and the 10 percent rating for right knee arthritis seeks a benefit not provided by law, and under these circumstances dismissal is required due to the lack of a proper claim. See Id. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal without prejudice to the veteran's filing a CUE claim. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). (Continued on next page.) ORDER The claim of entitlement to an effective date earlier than May 15, 1979, for the award of a 20 percent rating for residuals of a right knee injury and the award of a separate 10 percent rating for arthritis of the right knee is dismissed. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs