Citation Nr: 1319711 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-01 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to August 5, 2005 for the grant of service connection for coronary artery disease (CAD), which was subsequently severed on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to October 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In an October 2006 rating decision, the RO granted service connection for CAD as secondary to service-connected chronic glomerulonephritis. The RO assigned an initial 60 percent rating, effective date of August 9, 2005, the date on which the RO received the Veteran's claim for service connection for CAD. The Veteran disagreed with the effective date assigned, asserting in his Notice of Disagreement (NOD) that the proper effective date should be the date that he was first treated for CAD sometime in 2002. The Veteran timely appealed the earlier effective date issue to the Board. In his January 2008 VA Form 9, the Veteran requested to appear for a personal hearing before a Veterans Law Judge at that RO. He later withdrew that request. In a January 2010 rating decision, the RO proposed to sever service connection for CAD based on CUE. Specifically, the RO explained that 38 C.F.R. § 4.115 states, "Separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities." In a July 2010 rating decision, the RO severed service connection for CAD, effective September 1, 2010, because separate disability ratings had been erroneously assigned for the Veteran's chronic glomerulonephritis (60 percent) and CAD (60 percent). However, before service connection for CAD was severed, the Veteran had already perfected an appeal to the Board as to the issue of entitlement to an effective date prior to August 5, 2005 for the grant of service connection for CAD. Thus, although service connection for CAD has been severed, the issue of an earlier effective date for the August 2005 grant is properly before the Board, and therefore must be addressed. Before the case was certified to the Board, the RO issued a June 2011 rating decision which granted a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) effective from January 19, 2008. The RO subsequently issue another rating decision in March 2013 which granted service connection for depression, as secondary to the service-connected chronic glomerulonephritis and assigned an initial 30 percent rating, effective from October 25, 2010. As of that date, the combined schedular disability rating for the Veteran's service-connected disabilities was 90 percent. FINDING OF FACT During the pendency of the appeal for the claim of an earlier effective date for the grant of service connection for CAD (and the assignment of the 60 percent rating), the RO severed service connection for CAD effective September 1, 2010 on the basis of CUE. CONCLUSIONS OF LAW An earlier effective date for the grant of service connection for CAD with the assignment of a 60 percent rating is legally prohibited, as retroactive increases and additional benefits may not be awarded after service connection has been severed. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's initial claim of service connection for CAD was received at the RO on August 8, 2005. Service connection for CAD with an initial 60 percent rating was granted in an October 2006 rating decision, effective from August 8, 2005. The Veteran filed a notice of disagreement regarding the effective date of service connection, and this appeal ensued. While the appeal was pending, the RO severed service connection for CAD pursuant to a June 2010 rating decision, effective from September 1, 2010. The Veteran did not perfect an appeal as to the severance and the Board currently has no jurisdiction to review the severance of service connection. See 38 C.F.R. §§ 20.101, 20.200 (2012). The Veteran maintains that service connection for CAD is warranted at the time CAD was diagnosed, in 2002. In essence, the Veteran is seeking service connection to be effective from December 2002 so that he can retroactively collect the 60 percent disability rating assigned dating back to 2002. Before reaching the merits of the claim, the law prohibits the assignment of retroactive increase or additional benefit after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1) (2012). Severance of service connection for CAD has been completed. No question of law or fact remains now that the underlying CAD disability has been severed and service connection for CAD is not in effect; thus, the Board has no jurisdiction to consider the initial effective date claim. See 38 C.F.R. § 20.101(a) (2012). It is noted that the Veteran initially disagreed with the RO's July 2010 rating decision which severed service connection. In an October 2004 statement, he stated, "I must appeal to your decision to reduce my rating." In June 2011, the RO subsequently issued a Statement of the Case (SOC) addressing the issue of "continued entitlement to compensation for coronary artery disease." However, the Veteran never responded to the SOC. The Veteran did not submit a VA Form 9 or an equivalent substantive appeal, and at no time since the SOC was issued, has the Veteran ever showed an intent to perfect an appeal as to the issue of severance. Rather, the Veteran has continued to make the same argument; that he is entitled to an earlier effective date for the grant of service connection for CAD (prior to the severance) based on the 2002 date that the Veteran's CAD began, even though his initial claim of service connection was received in August 2005. However, because the basis for the severance was a finding that it was clearly and unmistakably erroneous to award a separate grant of service connection for CAD secondary to his nephritis, the establishment of service connection for CAD in October 2006 should never have taken place to begin with. It follows therefore, that if CAD should not have been service-connected, then the Veteran should never have been awarded disability benefits for CAD. Logically then, he should not now be awarded a retroactive benefit (monetary award) when it has been determined that he was not entitled to the benefits received in the first instance. 38 C.F.R. § 3.400(o)(1) prohibits such action. In the absence of a perfected appeal as to the issue of the propriety of the severance of service connection for CAD, the Board has no jurisdiction to consider severance of service connection. Thus, there is no legal basis for the award of the benefit sought. Absent any basis in law for the benefit sought, the appeal must be dismissed. Finally, the Board has considered the applicability of VA's duty to notify and assist Veteran's with claims for benefits under the provisions of 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These regulations are not applicable when no additional information or evidence could be obtained to substantiate the claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). In this case, the regulations are not applicable because there is no legal basis for the benefit sought. In a case such as this one, where the law and not the evidence is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER The issue of entitlement to an effective date prior to August 5, 2005 for the grant of service connection for CAD is dismissed as a matter of law. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs