Citation Nr: 1111804 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 09-07 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date earlier than March 26, 1998, for the grant of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to March 1973. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDINGS OF FACT 1. A November 2005 Board decision denied the Veteran's claim of entitlement to an effective date earlier than March 26, 1998, for the grant of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes. 2. In September 2007, the Veteran filed a claim of entitlement to an earlier effective date for the grant of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes. CONCLUSION OF LAW The claim of entitlement to an effective date prior to March 26, 1998 for the grant of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes is dismissed. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2010); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act (VCAA), those provisions are not applicable here where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (noting that the VCAA is not applicable where law is dispositive); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). In October 1994, the Veteran filed a claim for entitlement to service connection for a low back disorder. Rating decisions dated in February 1995, August 1995, and January 1996 denied the Veteran's claim. The Veteran perfected an appeal as to the January 1996 rating decision, and a subsequent February 1998 Board decision denied the Veteran's service connection claim. The February 1998 Board decision is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In March 1998, the Veteran filed a claim to reopen the issue of entitlement to service connection for a low back disorder. A May 2002 Board decision granted service connection for a low back disorder, and the decision was implemented by a June 2002 rating decision which granted service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes and assigned a 10 percent evaluation, effective April 2, 1998. Subsequent rating decisions dated in September 2002 and January 2003 resulted in the assignment of a 60 percent evaluation, effective March 26, 1998. The Veteran perfected an appeal as to the effective date assigned, and a November 2005 Board decision denied the Veteran's earlier effective date claim. The November 2005 Board decision is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In September 2007, the Veteran filed the present claim of entitlement to an earlier effective date for the grant of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes. The Veteran claims that the proper effective date for the award of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes should be October 26, 1994, the date that he filed his original claim for service connection, instead of March 26, 1998, the date that he filed his claim to reopen the issue of entitlement to service connection for a low back disorder. After a rating decision that grants service connection and assigns an effective date is final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). Free-standing earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. at 300. Accordingly, where a free-standing earlier effective date claim is made without a request for reconsideration due to CUE in the relevant rating decision, the claim must be dismissed. Id. Here, the Veteran's September 2007 claim for entitlement to an earlier effective date was filed after the November 2005 Board decision was final, and the claim did not allege CUE in the November 2005 Board decision. Accordingly, it is a free-standing earlier effective date claim and the Board must dismiss the appeal. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (holding that plain statutory language is applied unless it creates absurd results). ORDER The claim of entitlement to an effective date earlier than March 26, 1998, for the grant of service connection for status post right L5-S1 laminotomies and discectomies with mild central disc bulge and fibrotic changes, is dismissed. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs