Citation Nr: 1317420 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-04 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an earlier effective date prior to October 29, 2002 for the grant of service connection for depression with anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1998 to October 2000. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which denied an earlier effective date for the grant of service connection for depression with anxiety. The Veteran testified at a March 2013 Travel Board hearing. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. In a December 2003 rating decision, the RO granted service connection for depression with anxiety effective October 29, 2002, the date of the Veteran's claim. 2. In an October 2005 rating decision, the RO continued a 70 percent rating for depression with anxiety and granted entitlement to a total disability rating based on individual unemployability (TDIU). 3. The Veteran did not submit a timely appeal to either the December 2003 or October 2005 rating decisions. 4. In February 2007, VA received a statement from the Veteran, construed as a request for an effective date earlier than October 29, 2002 for the grant of service connection for depression with anxiety. 5. The freestanding claim for an earlier effective date for the grant of service connection for depression with anxiety is legally barred. CONCLUSION OF LAW The Veteran's claim for an earlier effective date for the award of service connection for depression with anxiety is legally insufficient and the appeal is dismissed. 38 U.S.C.A. § 5110(a) (West 2002); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In this case, VCAA notice is not required because the Board is denying the appeal for an earlier effective date as a matter of law, and not based upon consideration of the evidentiary record. See 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); 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). Law and Analysis Unappealed Board decisions are final on the date stamped on the face of the decision, in the absence of clear and unmistakable error, and are not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 7104, 7111 (West 2002). 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). 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 (2012). 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). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). A decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can 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. Rudd, 20 Vet. App. at 299. The Veteran submitted an initial claim for service connection for depression and anxiety, received on October 29, 2002. In a December 2003 rating decision, the RO granted service connection for depression with anxiety with a 70 percent evaluation effective October 29, 2002, the date of the Veteran's claim. The Veteran did not submit a timely appeal to this decision, and it became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). In an October 2005 rating decision, the RO continued a 70 percent rating for depression with anxiety, and granted entitlement to a TDIU. The Veteran did not submit a timely appeal to the October 2005 rating decision and it became final. Id. In February 2007, VA received a statement from the Veteran, which the RO construed as a request for an effective date prior to October 29, 2002, for the grant of service connection for depression with anxiety. In the present case, the Veteran is attempting to advance a freestanding claim for an earlier effective date; however, the United States Court of Appeals for Veterans Claims has made it clear that there can be no "freestanding" claim for an earlier effective date, because to allow such a claim would be contrary to the principles of finality set forth in 38 U.S.C.A. §§ 7104, 7105 (West 2002); see also Rudd, supra. In other words, the finality of the effective date precludes any attempt to now claim an earlier effective date on grounds other than clear and unmistakable error or a motion for reconsideration. The Veteran has effectively attempted to raise an impermissible "freestanding" claim for an earlier effective date. Consequently, there is no valid claim for the Board to consider on appeal, and the appeal must be dismissed. ORDER The appeal for an earlier effective date prior to October 29, 2002 for the award of service connection for depression with anxiety is dismissed. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs