Citation Nr: 1240171 Decision Date: 11/26/12 Archive Date: 11/30/12 DOCKET NO. 09-31 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date prior to December 14, 2006, for the assignment of a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted entitlement to compensable rating under 38 C.F.R. § 3.324, for which an effective date of December 14, 2006. A November 2012 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board observes that at this point the Board observes that the only issue in appellate status involves the pursuit of entitlement to an effective date prior to December 14, 2006, for the assignment of a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. In argument presented in October 2012, the Veteran's representative acknowledged that the arguments presented related to the pursuit of an earlier effective date for the grant of service connection for septal deviation and disfigurement of the face as established in a September 2007 rating action, and indicated that this matter was intertwined with the issue in appellate status. However, the Board finds no merit to this contention. In this regard, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. As the September 2007 rating action is final, there is can be no valid freestanding claim for an earlier effective date based on a challenge to this rating action, and therefore this matter is not intertwined with the issue on appeal. The Board observes that the only way the Veteran can attempt to overcome the finality of the RO's September 2007 rating decision in an attempt to gain an earlier effective date for the service connection grants established therein is to request a revision of the that rating decision based on CUE. See Leonard, 405 F.3d at 1337, Rudd; see also 38 U.S.C.A. § 5109A(a) (West 2002) ("a decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."). However, neither the Veteran nor his representative have asserted to this point that the September 2007 rating decision contains CUE. In this regard it is noted that, any claim of CUE must be pled with specificity and as of this time, this has not been done. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran filed original service connection claims for a right arm condition, nasal blockage, and disfigurement of the face in June 1979, within his first post-service year. 2. In an unappealed August 1979 rating decision, the RO granted service connection for a right arm condition - for which a non-compensable evaluation was assigned effective from October 1998, and denied the Veteran's service connection claims for nasal blockage and disfigurement of the face. 3. On December 14, 2006, the Veteran filed to reopen service connection claims for a deviated septum and facial disfigurement. 4. In a September 2007 rating action, the RO granted service connection for septal deviation and disfigurement of the face, for which separate, non-compensable evaluations were assigned, effective from December 14, 2006. 5. In 2007, the Veteran added to the claims file a copy of a service treatment record which, in part, formed the basis of the grant of service connection for septal deviation and disfigurement of the face, in a September 2007 rating decision. 6. In November 2008, the RO granted a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, effective from December 14, 2006, for the Veteran's three non-compensable, service-connected conditions - consisting of septal deviation, disfigurement of the face, and right arm fibro-lipoma. CONCLUSION OF LAW The criteria for an effective date prior to December 14, 2006, for the assignment of a 10 percent rating for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324 have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). After having carefully reviewed the record, the Board has concluded that VCAA notice is not necessary in this case because, as is explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the VA claims folder. Specifically, the United States Court of Appeals for Veterans Claims (Court) has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law, as is the case here. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). In this case, the Board finds that no further action is necessary pursuant to the VCAA prior to consideration of the issues addressed in this decision. As set forth in more detail below, the facts in this case are not in dispute and the appeal must be denied. Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Background The Veteran filed original service connection claims for a right arm condition, nasal blockage, and disfigurement of the face in June 1979. At that time, the Veteran reported that he was treated during service in June 1978 for nasal/breathing problems and disfigurement; and indicated that he was hospitalized by VA in January 1979 for nasal problems and a right arm condition, and in March 1979 for nasal and respiratory issues and disfigurement. In an August 1979 rating action, service connection was established for a fibro-lipoma of the right arm, for which a non-compensable evaluation was assigned, effective from October 1978. Service connection nasal blockage, and for disfigurement of the face was denied. The rating action reflects that the Veteran's STRs were considered which revealed removal of a fibro-lipoma of the right forearm in August 1978 and were negative for the other claimed conditions. In August 1979, the Veteran was advised of that decision and did not appeal it. On December 14, 2006, the Veteran filed a claim indicating that he had a service-related nose injury. He stated that he was discharged from the United States Air Force in October 1978, and that in March 1979 he was hospitalized by VA in Boston, MA, and underwent surgery for a deviated septum. He mentioned that he had been unable to get a copy of these records. The record includes a VA scar examination conducted in January 2007. The Veteran stated that in June 1978 while serving on military security detail, he was involved in an automobile accident when his vehicle struck a tree. He reported that as a result, he suffered a lacerated wound on the bridge of his nose and was treated at any Army hospital. The Veteran indicated that the injury healed and the sutures were removed about a week after the incident. On examination, a service-connected injury to the bridge of the nose was diagnosed, manifested by a fine line scar, with no cosmetic problems or associated symptoms. In February 2007, the Veteran provided additional evidence for the file consisting of a Form 3647-1, indicating that he had been treated at a military hospital in June 1978. The form indicates that the Veteran was involved in a car accident in June 1978 and struck his nose against the steering wheel of the car, following which he underwent repair of a nose laceration in the emergency room. Nasal laceration across the bridge of the nose was diagnosed. In 2007, records from the Veteran's VA hospitalization in March 1979 were received. The records reflect that the Veteran had been involved in an automobile accident several years previously, and struck his nose at that time. It was noted that since that time, the Veteran had complained of right-sided nasal obstruction and external nasal deformity. Physical examination revealed that the right nasal bone was elevated and that there was septal deviation to the right. The Veteran underwent septorhinoplasty and did well postoperatively. A VA examination of the nose was conducted in June 2007. A history of the car accident in service was recorded and the Veteran indicated that he had complained of nasal blockage and deformity since the accident. The Veteran gave a 10-year history of left side nasal obstruction and occasional right-sided obstruction. Physical examination revealed severe left septal deviation with left septal purring, which was impinging against the left inferior turbinate and obstructing the left nasal airway by 80 percent. Septal deviation, flattened and broadened nasal dorsum, status post nasal fracture, and status post septorhinoplasty were diagnosed. The examiner opined that it was most likely that the left septal deviation was most likely a result of nasal trauma that the Veteran sustained in service. In a September 2007 rating action, service connection was established for septal deviation and disfigurement of the face, each of which was assigned a non-compensable evaluation effective from December 14, 2006. In granting the claims the RO mentioned that fact that the Form 3647-1, received in 2007, had confirmed the Veteran's involvement in a vehicle accident and his resulting nose injury. In addition, the RO denied a 10 percent evaluation based on multiple, compensable service-connected disabilities. A private medical report of March 2008 noted a history of the Veteran's vehicle accident in service and mentions that he could not breath through the right side of his nose. Assessments of deviated nasal septum, sinusitis, chronic rhinitis and nasal deformity, were made. In a November 2008 rating action, the RO granted entitlement to a 10 percent rating for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, effective from December 14, 2006. The Veteran appealed the decision with respect to the effective date assigned. Analysis The Veteran claims entitlement to an effective date earlier than December 14, 2006 for the grant of a 10 percent rating for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. Specifically, he maintains that service connection for septal deviation and disfigurement of the face should have been granted from October 15, 1978, the day after his discharge from service, in conjunction with an original claim for these conditions which was filed in January 1979. In essence, it appears that the Veteran is actually seeking an earlier effective date for the grant of service connection for septal deviation and disfigurement of the face; an issue which is not technically on appeal as it arises from the grant of service connection established for those conditions in a final rating action of September 2007. The Veteran filed original service connection claims for a right arm condition, nasal blockage, and disfigurement of the face in June 1979, within a year of his discharge from service. In an August 1979 rating action, service connection was established for a fibro-lipoma of the right arm, only, for which a non-compensable evaluation was assigned, effective from October 1978. Service connection nasal blockage, and for disfigurement of the face was denied. In August 1979, the Veteran was advised of that decision and did not appeal it. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.1100. On December 14, 2006, the Veteran filed a claim indicating that he had a service-related nose injury. The RO construed that claim as a petition to reopen the previously denied June 1979 claims for nasal blockage, and for disfigurement of the face. 38 C.F.R. § 3.156. Ultimately, the RO granted both of the Veteran's claims in a September 2007 rating decision, essentially having reopened and granted the claims based on the inclusion in the record of new and material evidence. 38 C.F.R. § 3.156. The RO assigned the December 14, 2006 date of claim as the effective date for the awards of service connection. In a November 2008, the RO also granted entitlement to a 10 percent rating for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, effective from December 14, 2006. The provisions of 38 C.F.R. § 3.324 provide that whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating. Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An effective date for direct service connection may be assigned on the day after separation from service or the date entitlement arose, if a claim is received within one year of separation from service, otherwise the general rule applies. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Similarly, the effective date for an award of service connection based on a claim reopened due to the submission of new and material evidence not received within one year of the prior decision is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q), (r). If, however, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant, official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider, rather than reopen, the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) are met. 38 C.F.R. § 3.156(c)(1). Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. 38 C.F.R. § 3.156(c)(3). As asserted by both the Veteran and his representative, a relevant, official service department record was added to the claims file in 2007 and this forms the primary basis for the argument in this case that an earlier effective date is warranted under 38 C.F.R. § 3.156(c). Specifically, the evidence provided for the file in 2007 consists of a Form 3647-1, indicating that the Veteran was treated at a military hospital in June 1978 after being involved in a car accident during which he struck his nose against the steering wheel of the car, and following which he underwent repair of a nose laceration in the emergency room. That record reflects that nasal laceration across the bridge of the nose was diagnosed. This evidence existed at the time of the August 1979 rating decision denying the Veteran's original service connection claims for nasal blockage, and disfigurement of the face, but was not then included in the available STRs for reasons which are unclear. This record arguably relates to a claimed in-service event the occurrence of both the accident in 1978 and nose/facial injuries. Further arguably, this evidence may have assisted in forming the basis of the RO's grant of service connection for septal deviation and disfigurement of the face in September 2007, as discussed under 38 C.F.R. § 3.156(c). In essence, the argument relating to the applicability of the provisions of 38 C.F.R. § 3.156(c), involves the pursuit of an earlier effective date for the establishment of service connection for septal deviation and disfigurement of the face, as granted in a September 2007 rating action. However, and significantly, the September 2007 rating decision establishing service connection for both septal deviation and disfigurement of the face, for which separate non-compensable evaluations were assigned effective from December 14, 2006, is final. 38 U.S.C.A. § 7105 (West 2002). While it appears that the Veteran actually filed a timely NOD with that rating action in conjunction with the ratings assigned only, and not the effective dates assigned; he later indicated in a November 2008 rating action that he was satisfied with the decision and did not wish to pursue an appeal. Accordingly, the September 2007 rating action became final in September 2008. Case law emphasizes that once there is a relevant final decision on an issue, there cannot be a "freestanding claim" for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006); see Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc); see also Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). In Rudd, the Court held that a claimant can attempt to overcome the finality of a decision in an attempt to gain an earlier effective date either by way of a request for revision of the decision based on clear and unmistakable error (CUE), or by a claim to reopen based upon new and material evidence. Rudd, 20 Vet. App. 296 (2006). However, in Leonard v. Nicholson, the Federal Circuit determined that, even when a claimant has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir. 2005) (indicating that "no matter how [the claimant] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Pursuant to the aforementioned discussion, the only way the Veteran could attempt to overcome the finality of the September 2007 rating decision - in an attempt to gain an earlier effective date - is to request a revision of that rating decision based on clear and unmistakable error (CUE). See Cook, 318 F.3d at 1339; see also 38 U.S.C.A. § 5109A(a) (West 2002) ("a decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."). Here neither the Veteran nor his representative has asserted that the September 2007 rating decision contained CUE. Thus, at this point the Veteran is legally and factually precluded from receiving an effective date earlier December 14, 2006, for the grant of service connection for septal deviation and disfigurement of the face. This preliminary finding is important as entitlement to the assignment of a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, is necessarily predicated on the rating and effective dates assigned in conjunction with the Veteran's service-connection claims. Here, it is clear that the criteria for a compensable rating under 38 C.F.R. § 3.324, could not possibly have been met prior to December 14, 2006, because service-connection had not been established for multiple, non service-connected conditions until that time. Accordingly, the currently assigned effective date of December 14, 2006, represents the date entitlement arose under the provisions of 38 C.F.R. § 3.324, and at this point (absent a possible future finding of clear and unmistakable error in the September 2007 rating action), represents the correct and appropriate effective date. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In summary, the Veteran's claim for the assignment of a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, is essentially actually an earlier effective date claim for the grant service connection for septal deviation and disfigurement of the face. See 38 U.S.C.A. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). However, the Court has held that there is no such thing as a "freestanding" earlier effective date claim which can be raised at any time. Rudd, 20 Vet. App. at 299. Hence, at this point the September 2007 rating action establishing service connection for septal deviation and disfigurement of the face, for which non-compensable evaluations were assigned effective from December 14, 2006 is final. As explained previously, the only way the Veteran could attempt to overcome the finality of the RO's September 2007 rating decision in an attempt to gain an earlier effective date is to request a revision of that rating decision based on CUE. See Leonard, 405 F.3d at 1337; Rudd; see also 38 U.S.C.A. § 5109A(a) (West 2002) ("a decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."). Essentially, the Veteran's earlier effective date claim brought in conjunction with the effective date of December 14, 2006 assigned pursuant to 38 C.F.R. § 3.324, cannot be used as a vehicle for re-examining the effective dated assigned for the grants of service connection established in the final September 2007 rating decision, in effect circumventing the Rudd holding. The Board also finds that there is no basis for the assignment of an earlier effective dated based on the argument that the RO failed to assist in conjunction with the original rating action of June 1979, as VA treatment and hospitalization records were not sought. (See October 2012 Appellant's Brief). Again, the Board points out that the June 1979 rating decision is final and notes that in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. Rather, the proper way to assert error in a final decision would be through an allegation that the June 1979 rating decision contained CUE, a contention not specifically made in this case. 38 U.S.C.A. § 5109A; see Moody v. Principi, 360 F.3d 1306, 1309 (Fed.Cir.2004). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) (noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). Given the foregoing, there is no basis for the assignment of an effective date prior to December 14, 2006 for the grant for the assignment of a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. The Court has held that where the law not the evidence is dispositive, the Board should deny an appeal because of an absence of a legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the appeal is denied in accordance with the aforementioned discussion. ORDER Entitlement to an effective date prior to December 14, 2006, for the assignment of a 10 percent evaluation for multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324, is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs