Citation Nr: 1300758 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-00 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Decatur, Georgia THE ISSUE Entitlement to an effective date prior to February 24, 1995, for the award of service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In August 2012, the Veteran withdrew his request for a Board hearing in writing. The issue of whether there was clear and unmistakable error (CUE) exists in a February 1971 rating decision of the RO, which denied entitlement to service connection for a low back disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In a February 1996 decision, the RO granted entitlement to service connection for a low back disability, effective February 24, 1995. The Veteran did not file a notice of disagreement with the effective date assigned. 2. In October 2000, the Veteran requested an earlier effective date of September 1, 1970 for his service-connected back disorder. CONCLUSIONS OF LAW 1. The February 1996 decision which granted entitlement to service connection for a low back disability, and assigned an effective date of February 24, 1995, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010);38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103 (2012). 2. The appellant's freestanding claim for an earlier effective date for the award of service connection for a low back disability must fail as a matter of law, and the appeal is dismissed. 38 U.S.C.A. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes, as set forth in more detail below, the facts in this case are not in dispute and the appellant's appeal must be dismissed as a matter of law. Thus, the VCAA is not applicable in this case. 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); see also VAOPGCPREC 5- 2004 (holding that under 38 U.S.C. § 5103(a), 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). As the Veteran's November 2012 allegations regarding CUE in the February 1971 rating decision have not been addressed, the matter has been referred to the RO for proper action. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for an earlier effective date for the grant of service connection for a low back disability while referring his motion for CUE to the RO. Specifically, the Board questions whether the two issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Board finds no such relationship. The outcome of the Veteran's claim for an earlier effective is not dependent on the outcome of his CUE claim. The Veteran's earlier effective claim is being denied by operation of law. The outcome of the claim for CUE would, at best, render moot the effective date claim. Indeed, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has itself bifurcated and separately adjudicated the issues of entitlement to an earlier effective date and CUE based on the same contentions. Canady v. Nicholson, 20 Vet. App. 393, 402 (2006). Laws and Regulations Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The Board notes the Veteran's initial claim of entitlement to service connection for a low back disability was received within one year after his separation from service; however, the February 1971 denied service connection and he did not file a timely appeal of this decision. Appellate review of a rating decision is initiated by the timely submission of a notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, completed by the timely submission of a substantive appeal (VA Form 9 or equivalent). 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). 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, a claim reopened after a final disallowance, 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. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2) ; Leonard v. Principi, 17 Vet. App. 447 (2004), aff'd Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). Consistent with the above-described prior case law , the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Factual Background and Analysis By way of history, the Board notes that the Veteran was initially denied entitlement to service connection for a low back disability in a February 1971 rating decision. He filed a timely notice of disagreement with this decision, and in August 1971 he was provided an SOC. He did not file a substantive appeal. In August 1971, he filed a claim to reopen by submitting a new formal application; however, no new evidence and no new contentions were submitted. This claim was denied in a September 1971 rating decision. He again filed a timely notice of disagreement, and was provided an SOC; however, he again did not file a timely substantive appeal. In February 1995, the Veteran filed another claim to reopen a claim of entitlement to service connection for a low back disability, and his claim was denied in a September 1995 rating decision. The Veteran substantively appealed this decision; however, prior to the claim reaching the Board (in February 1996), a Decision Review Officer granted entitlement to service connection for a low back disability and assigned an effective date of February 24, 1995 (the date of his claim to reopen). The Veteran did not appeal the effective date assigned and it became final. In October 2000, the Veteran filed a claim for an earlier effective date of September 1, 1970 for the award of service connection for a low back disability. Other than requesting an earlier effective date, the Veteran did not provide any additional contentions. The October 2000 claim was a "freestanding" earlier effective date claim, which, as described above, is not allowed as a matter of law. In February 2001, the RO adjudicated the claim and denied entitlement to an earlier effective date. In a statement dated in April 2001, the Veteran once again argued the matter of the appropriate effective date. The RO construed the April 2001 statement as alleging clear and unmistakable error (CUE) was committed in the 1996 rating decision that awarded an effective date of February 24, 1995. The RO denied his CUE claim in an unappealed August 2002 rating decision. In March 2006, the Veteran submitted a statement once again seeking an earlier effective date for the grant of service connection for a back disability. He described his claim as one for "reconsideration of retroactive pay" back to 1970 and his discharge from service. He indicated the February 1996 grant of service connection should have provided an effective date back to his discharge from service. He did not specifically allege CUE, and the RO took his statement to be a claim to reopen a claim of entitlement to an earlier effective date for the grant of service connection for a low back disability. In a September 2006 rating decision, the RO addressed whether new and material evidence had been submitted to reopen the claim, and the decision appears to deny the earlier effective date claim on the merits. The Board notes that the RO's characterization of the issue on appeals rests on the RO's determination that the Veteran did not appeal the February 2001 decision to deny an earlier effective date. In essence, the RO determined that the February 2001 decision became final, and that new and material evidence must be received to reopen the claim for an earlier effective date. The Board concludes, however, that the Veteran's April 2001 statement could be reasonably construed as expressing disagreement with the February 2001 decision. Therefore, the Board finds that the issue should not be characterized as whether to reopen a previously denied claim as the claim has, in fact, remained pending since October 2000. The Board further notes, however, that the determinative factor in this case is not the finality of the February 2001 decision denying an earlier effective date. Rather, the determinative factor is that the 1996 rating decision that assigned the effective date became final. Thus, whether this appeal arose from Veteran's October 2000 statement seeking an earlier effective date or the March 2006 statement seeking an earlier effective date, there is no issue to address on the merits as "freestanding" earlier effective date claims cannot be granted as a matter of law. As noted, the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd, supra. The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. The Court further held, however, that because the proper effective date for an award based on a claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. See Leonard, 405 F.3d 1333 at 1337 (indicating that "no matter how [the Veteran] 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). In short, as the February 1996 decision wherein the RO granted entitlement to service connection for a low back disability, effective February 24, 1995 In November 2012, was not appealed, the claim seeking an earlier effective date lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be dismissed due to a lack of legal merit). ORDER The claim of entitlement to an effective date prior to February 24, 1995, for the award of service connection for a low back disability, is dismissed. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs