Citation Nr: 1104635	
Decision Date: 02/04/11    Archive Date: 02/14/11

DOCKET NO.  09-27 810A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South 
Carolina


THE ISSUE

Entitlement to an effective date earlier than June 1, 1989 for 
the grant of service connection for death benefits, Dependency 
and Indemnity Compensation (DIC).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

E. I. Velez, Counsel


INTRODUCTION

The Veteran had active service from June 1967 to May 1969.  He 
died in February 1975.  The appellant is the Veteran's widow.

This matter came before the Board of Veterans' Appeals (Board) on 
appeal from a May 2008 decision by the Department of Veterans 
Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

A hearing in front of the undersigned Acting Veteran's Law Judge 
was held in October 2010.  A transcript of the hearing has been 
associated with the claims file.  

During the October 2010 hearing the appellant and her 
representative raised the issues of clear and unmistakable 
error (CUE) in an April 1975 rating decision denying 
service connection for the cause of the Veteran's death 
and entitlement to an effective date earlier than June 1, 
1989 for the grant of service connection for death 
benefits to include accrued benefits.  These issues have 
not been adjudicated by the Agency of Original 
Jurisdiction (AOJ).  Therefore, the Board does not have 
jurisdiction over them, and they are referred to the AOJ 
for appropriate action.  


FINDING OF FACT

The February 2000 rating decision which granted an effective date 
of May 19, 1989 for the appellant's award of service connection 
for cause of the Veteran's death is final and the Board is 
without jurisdiction to consider the appellant's February 2008 
claim.


CONCLUSION OF LAW

The February 2000 rating decision which granted an effective date 
of May 19, 1989 for the appellant's award of service connection 
for cause of the Veteran's death is final and the appeal an 
effective date earlier than June 1, 1989 for the grant of service 
connection for death benefits based upon a February 2008 claim is 
legally precluded. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 
3.105(a) (2010); Rudd v. Nicholson, 20 Vet. App. 296 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

By way of history, the Veteran was discharged from military 
service in May 1969.  He submitted a claim for service connection 
for a pituitary tumor in February 1974.  In connection with this 
claim the Veteran submitted private treatment records showing 
subjective complaints of impotence beginning in 1969, objective 
complaints of impotence beginning in July 1970, and an eventual 
diagnosis of a pituitary tumor in 1973.  By rating decision dated 
in March 1974 the RO denied service connection for pituitary 
cystic adenoma finding that while presumptive service connection 
is available for a pituitary tumor, the first documented showing 
of impotency, a known side effect of a pituitary tumor, was dated 
in July 1970, over one year after the Veteran's separation from 
military service.  This decision was confirmed by rating decision 
dated in December 1974.

The Veteran died in February 1975 . The cause of death listed on 
the death certificate is "cardiorespiratory arrest, probable 
pulmonary embolus, pituitary tumor."  The appellant failed an 
initial claim for service connection for cause of the Veteran's 
death in March 1975.  By rating decision dated in April 1975 the 
RO denied service connection for the cause of the Veteran's death 
was initially denied in April 1975.  The appellant requested 
reopening the claim for service connection for the cause of the 
Veteran's death several times, and in decisions of May 1987, and 
December 1994, the RO denied reopening the claim.  The appellant 
appealed the December 1994 denial.

In a decision of May 1999, the Board reopened the claim for 
service connection for the cause of the Veteran's death and 
remanded the claim for development.  In a rating decision of 
February 2000, service connection for the cause of death and DIC, 
was granted, effective June 1, 1989, the date of the appellant's 
most recent request to reopen the claim.  The appellant was 
informed of the decision in April 2000. 

In August 2000, the appellant disagreed with the effective date 
of the grant of DIC benefits.  A Statement of the Case (SOC) was 
issued in September 2000.  The appellant did not perfect an 
appeal.

In a statement of December 2007, the appellant essentially 
requested to reopen the claim for an earlier effective date for 
the grant of DIC benefits.  In a letter of January 2008, the RO 
informed the appellant that she had not perfected an appeal after 
the SOC of September 2000 and as a result the February 2000 
decision was final.  She was informed she could appeal the 
decision.  

In February 2008, the appellant, through her representative, 
submitted evidence in support of a claim for an earlier effective 
date for the grant fo DIC benefits.  In May 2008, the RO denied 
the claim.

Analysis

In Rudd v. Nicholson, 20 Vet. App. 296 (2006) the Court of 
Appeals for Veteran's Claims (Court) held that where a rating 
decision which established an effective date for an increased 
rating becomes final, an earlier effective date can only be 
established by a request for a revision of that decision based on 
clear and unmistakable error (CUE).  In essence, the Court in 
Rudd held that there is no "freestanding" earlier effective 
date claim which could be raised at any time.  See Rudd, 20 Vet. 
App. at 299.

Based on the Court's decision in Rudd, the Board finds that the 
appellant's earlier effective date claim for death benefits prior 
to May 19, 1989 must be dismissed.  In a February 2000 rating 
decision the RO granted an effective date of May 19, 1989 for the 
appellant's award of service connection for cause of the 
Veteran's death.  While the appellant initially disagreed with 
this decision, she failed to perfect an appeal.  As such, the 
February 2000 rating decision is final. 38 U.S.C.A. § 7105; 38 
C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103.   

If the appellant believed that the February 2000 rating decision 
was incorrect, her proper recourse was to perfect an appeal to 
the Board.  Because the appellant did not perfect an appeal to 
the Board, the February 2000 rating decision became final.  That 
being the case, the appellant is left with only one option in her 
attempt to obtain an earlier effective date: a claim alleging 
that the February 2000 rating decision which granted an effective 
date of May 19, 1989 for the appellant's award of service 
connection for cause of the Veteran's death contained CUE. See 38 
C.F.R. § 3.105(a).  As above, the issue of CUE in an April 1975 
rating decision denying service connection for the cause of the 
Veteran's death has been referred to the RO.

In light of the fact that the February 2000 rating decision is 
final, the Board is without jurisdiction to review the February 
2000 rating decision.  Dicarlo v. Nicholson, 20 Vet. App. 57-58 
(2006).  The Court has held that the proper disposition of a free 
standing claim for an earlier effective date claim is dismissal.  
Rudd v. Nicholson, 20 Vet. App. at 300.  In conclusion, the Board 
is authorized to dismiss any appeal that fails to allege an error 
of fact or law. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.302.  
Accordingly, this appeal is dismissed.



Notice and Assistance

The Board has given consideration to VA's duty to notify and 
assist the appellant in the development of her claim.  See 38 
U.S.C.A. §§ 5103, 5103A (West 2002).  However, in Manning v. 
Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 
Vet. App. 165 (2001), the Court held that these duties have no 
effect on an appeal where the law, and not the underlying facts 
or development of the facts, is dispositive of the matter.  As 
discussed above, the appellant's claim is being dismissed by the 
Board because the appellant did not raise the earlier effective 
date issue in a timely fashion.  The claim is therefore being 
dismissed based on the law.  Whatever facts are necessary to 
adjudicate the claim are already contained in the claims folder.  
Thus, notice or assistance to the appellant would be fruitless.


ORDER

The appeal is dismissed.



____________________________________________
APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs