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