Citation Nr: 0811414 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 06-00 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date prior to July 15, 1996 for a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Antonio E. Benduzu ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from March 1945 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. In September 1997, the RO granted a TDIU rating and assigned an effective date of July 15, 1996. 2. In July 2005, the veteran submitted a claim for an earlier effective date for the award of a TDIU rating. CONCLUSION OF LAW The veteran has failed to advance an allegation of fact or law upon which relief may be granted. 38 U.S.C.A. § 7105 (d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). The Board notes that the Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the present case, the facts are not in dispute. As discussed below, resolution of the veteran's appeal is wholly dependent on interpretation of the relevant VA statutes and regulations. Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, should any deficiencies of VCAA notice or assistance exist, they are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (deficiency of VCAA notice is not prejudicial when a benefit could not be awarded as a matter of law); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). II. Analysis In a September 1997 rating decision, the RO granted a TDIU rating, effective July 15, 1996. The veteran did not appeal this decision. In July 2005, the veteran submitted a claim for an earlier effective date for the grant of a TDIU rating. The Court has held that there is no such claim as a "claim for an earlier effective date." Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). As the veteran's request may not be reasonably construed as either an application to reopen a prior final claim or a claim of clear and unmistakable error in such a final claim, the Board finds no allegation of fact or law upon which relief may be granted. Accordingly, the veteran's claim must be dismissed. 38 U.S.C.A. § 7105 (d)(5) (West 2002). ORDER The issue of entitlement to an effective date prior to July 15, 1996 for the award of a TDIU rating is dismissed. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs