Citation Nr: 1301332 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-23 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than October 13, 2006 for the grant of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1942 to October 1945. He died in November 1984 and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted entitlement to service connection for the cause of the Veteran's death, effective October 13, 2006. The Appellant testified at a Board hearing at the RO in Houston, Texas in September 2012. Unfortunately the transcript of the hearing is unavailable, although the exhibits she provided are included in the claims file. In October 2012 the Board informed the Appellant of this circumstance and offered her the opportunity to have another hearing. Originally in an October 2012 response the Appellant stated she would attend an additional hearing. However, in a November 2012 follow up statement she indicated she would not be able to attend another hearing and that her claim should be decided based on the evidence of record. Therefore, Board adjudication of the current appeal may go forward without an additional hearing. See 38 C.F.R. §§ 20.703, 20.704 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO denied entitlement to service connection for the cause of the Veteran's death in a June 1994 rating decision. The Appellant did not appeal this decision and it became final. 2. The Appellant filed a petition to reopen a claim of entitlement to service connection for the cause of the Veteran's death, which was received on October 13, 2006. 3. By way of a March 2007 RO rating decision, the Appellant was granted service connection for the cause of the Veteran's death, effective October 13, 2006. CONCLUSION OF LAW Entitlement to an effective date prior of October 13, 2006, for the award of service connection for the cause of the Veteran's death is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Significantly, however, the United States Court of Appeals of the Federal Circuit has held that, with regard to claims for an earlier effective date, once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Regardless, the Appellant was provided on substantiating her claim in October 2010. Regarding the duty to assist, all relevant records have been obtained and the Appellant has been provided with a hearing. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Appellant by VA would be capable of substantiating her claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Appellant in adjudicating this appeal. Analysis The Appellant alleges that service connection for the cause of the Veteran's death should be effective prior to October 13, 2006, and should go back as far as the date of the Veteran's death in 1984. She contends that as the VA has conceded the Veteran's death was service related, the effective date should begin in November 1984. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of 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 C.F.R. § 3.400. The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). See Leonard v. Principi, 405 F.3d 1333 (Fed. Cir. 2005); Nelson v. Principi, 18 Vet. App. 407, 409 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215 (1993). The Appellant filed her original claim for service connection for the cause of the Veteran's death in February 1994. In June 1994, the RO denied the claim. The Appellant was notified of this decision and of her appellate rights by letter dated June 28, 1994. The Appellant did not appeal this decision. As such, the June 1994 rating decision that denied service connection for the cause of the Veteran's death became final. 38 C.F.R. § 20.1103. Accordingly, new and material evidence was required to reopen any future claim for service connection for the cause of the Veteran's death. The Appellant filed a petition to reopen her claim of service connection for the cause of the Veteran's death, which was received at the RO on October 13, 2006. In her petition, she requested that her claim be reopened and submitted evidence including a statement alleging that the Veteran was exposed to asbestos in-service and statements from the Veteran's children. Over the course of the appeal she also submitted internet evidence pertaining to kidney cancer and evidence from an additional Appellant whose husband served on the same ship with the Veteran and was also exposed to asbestos. In a March 2007 rating decision, the Appellant's claim for entitlement to service connection for the cause of the Veteran's death was granted, effective October 13, 2006. The Appellant disagreed with the rating decision and indicated that the effective date should be earlier. Pertinent regulations outlined above explicitly indicate that the effective date for service connection for a reopened claim cannot be earlier than the date of receipt of the claim to reopen. In this case, the Appellant has requested an effective date prior to October 13, 2006 for the award of service connection for the cause of the Veteran's death. A thorough review of the claims file does not reveal any attempts by the Appellant to reopen the issue of service connection for the cause of the Veteran's death prior to October 13, 2006. The Board sympathizes with the Appellant and acknowledges her contentions that an earlier effective date is warranted as the Veteran's death has been determined to be related to service. However, there are no pending, unadjudicated claims for entitlement to service connection for the cause of the Veteran's death prior to October 13, 2006. While it is possible that the Appellant could overcome the finality of a decision by alleging clear and unmistakable error (CUE), she has not as of this date challenged earlier decisions on the basis of CUE. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.105, 20.1403. Therefore, an effective date earlier than October 13, 2006, for the award of service connection for the cause of the Veteran's death is not warranted. ORDER Entitlement to an effective date prior to October 13, 2006 for the award of service connection for the cause of the Veteran's death is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs