Citation Nr: 1300573 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-25 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether a notice of disagreement with the July 2001 rating decision's assignment of June 18, 2000, as the effective date for the grant of a total disability rating for the Veteran's service-connected acquired psychiatric disability, was timely filed. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to February 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his substantive appeal, the Veteran requested a hearing before a member of the Board, but in June 2011 he withdrew his request. FINDINGS OF FACT 1. A July 11, 2001, RO decision increased the disability evaluation for the Veteran's service-connected acquired psychiatric disability from 50 percent to 100 percent, effective June 18, 2000. 2. The Veteran was notified of this decision in a July 18, 2001, letter and informed of his appellate rights and the time period for submitting a notice of disagreement with the July 2001 decision. 3. The Veteran did not submit any document that could reasonably be construed as a notice of disagreement with the June 18, 2000, effective date within one year of July 18, 2001, letter. 4. A July 31, 2007, statement appears to be the Veteran's earliest objection to the effective date of the July 2001 rating decision. CONCLUSIONS OF LAW The Veteran's notice of disagreement, expressing disagreement with the effective date assigned by the July 2001 RO decision, was not timely; and the July 2001 RO decision is final. 38 U.S.C.A. §§ 7105(b)(1), (c) (West 2002 & Supp, 2012); 38 C.F.R. §§ 20.302(a), 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran is seeking entitlement to an effective date earlier than June 18, 2000, for a grant of a total (100%) disability rating for a service-connected acquired psychiatric disability. He has argued that he has been totally disabled due to his psychiatric problems since his separation from service and that a total disability rating should be assigned back to that date. The total disability rating was granted in a July 11, 2001, rating decision. The Veteran was notified of this decision on July 18, 2001. This same letter informed the Veteran of his appellate rights and the time limits for filing a notice of disagreement with any aspect of the decision. Pursuant to VA regulations, the Veteran had one year from the date of the July 18, 2001, letter to submit a notice of disagreement. See 38 U.S.C.A. § 7105(b)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 20.302(a) (2012). The Board has reviewed the record and it appears that a letter from the Veteran date stamped July 31, 2007, is the earliest document that can reasonably be construed as a notice of disagreement with the effective date assigned in the July 2001 RO decision. Clearly this notice of disagreement was not timely filed and cannot be accepted. Accordingly, the July 2001 RO decision is final. It does not appear that the Veteran has argued that he submitted any writing that could reasonably be construed as a notice of disagreement within the appropriate time period. However, in various statements to VA, the Veteran argues that he received poor representation from his various service representatives at the time and that he suffered from poor health and was hospitalized during the period in which he was supposed to file a notice of disagreement. Unfortunately, the hardships described by the Veteran are not considered an exception to the one year time limit for submitting a notice of disagreement under VA regulations. The Veteran's argument that his illness and/or poor representation from his representative prevented him from submitting a timely notice of disagreement is in essence an equitable argument. It is important for the Veteran to understand that the Board may only grant entitlement to VA benefits as authorized by law, and does not have authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994) ("no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress"); Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Parenthetically, the Board would also note that to the extent the Veteran's July 2007 statement could be considered a stand-alone claim for an earlier effective date, rather than an untimely notice of disagreement, such claims are not permitted. In Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that when a rating decision is final, only a request for a revision premised on clear and unmistakable error (CUE) could result in the assignment of earlier effective date. A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. Absent CUE in a prior rating action- a claim that is not before the Board- the Board is statutorily barred from revisiting the RO's factual or legal findings in the July 2001 rating decision by operation of 38 U.S.C.A. § 5110(a). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). It is important for the Veteran to understand that the RO's decision is a final decision, and any attempt to collaterally attack this decision must be addressed in a CUE motion. Rudd, supra. Such a claim has not been specifically raised by the Veteran or adjudicated by the RO. Consequently, the Board finds that a claim of CUE with respect to the July 2001 rating action or any other rating decision is not a subject for current appellate review. The Board is sympathetic to the fact that the Veteran's poor health makes it difficult and stressful to pursue his claims for VA benefits and appreciates that the Veteran is angry with the quality of representation he received from his former representative. Unfortunately, these are not legally sufficient bases to waive procedural requirements. The RO properly informed the Veteran of the July 2001 decision, and of his appellate rights and the time limits to submit a disagreement with its findings. The Veteran has not alleged that he failed to receive this notice, that this notice was legally inadequate, or that he was not competent to understand it by reason of a disability. Accordingly, once the Veteran received this notice, the ball was in his court to act on any disagreement he had in a timely fashion. He failed to do so, and the July 2001 decision became final. Additionally, as the Veteran has not raised a claim of CUE with respect to the July 2001 RO decision, all that would remain is a free-standing earlier effective date claim that he is barred from revisiting under Rudd v. Nicholson, 20 Vet. App. 296 (2006). Accordingly, for all the above reasons, the Board is currently without jurisdiction to consider the claim for an effective date earlier than June 18, 2000, for a grant of a total disability rating for a service-connected acquired psychiatric disability, and the appeal is dismissed. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). ORDER Having found that a timely notice of disagreement was not filed with respect to a July 2001 rating decision's assignment of a June 18, 2000, effective date for the grant of a total disability rating for the Veteran's service-connected acquired psychiatric disorder, the appeal is dismissed. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs