Citation Nr: 1327979 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-33 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than February 18, 2000, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION 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). The Veteran served on active duty from September 1956 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over this case was subsequently transferred to the VARO in Montgomery, Alabama, and that office forwarded the appeal to the Board. In July 2013, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. FINDINGS OF FACT 1. In an April 2005 decision, the RO granted entitlement to a TDIU, effective February 18, 2000. This was the date of the most recent claims. Earlier claims had been decided and appellant had been notified of the results and had not appealed. 2. In a May 2005 letter, the Veteran was notified of this decision and informed of his procedural and appellate rights, including the right to disagree with the decision. 3. The Veteran did not file any statement indicating disagreement with the effective date assigned for the TDIU within one year of notification of the decision assigning the effective date. 4. New and material evidence was not received within the one year appeal period such that the issue of entitlement to an earlier effective date for the grant of entitlement to a TDIU remained pending. CONCLUSIONS OF LAW 1. The April 2005 decision assigning February 18, 2000 as the effective date of the grant of entitlement to a TDIU is final. 38 U.S.C.A. § 7105(a)-(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103 (2012). 2. The Veteran's challenge to the effective date assigned for his TDIU was not made via timely disagreement with the decision assigning the effective date and must therefore be dismissed as an improper freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to finality of RO decisions assigning effective dates and the manner in which such decisions may be challenged. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). The Veteran claims that he is entitled to an effective date earlier than February 18, 2000 for his TDIU. The Court has emphasized, however, that an effective date cannot simply be challenged with a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rather, the effective date may be challenged directly by a timely notice of disagreement following its assignment or by submitting new and material evidence within the one year appeal period, see 38 U.S.C.A. § 7105(a),(b); 38 C.F.R. §§ 3.156(b), 20.201, 20.302, or it may be challenged collaterally with a motion alleging clear and unmistakable error (CUE) in the decision assigning the effective date or in a prior decision the reversal of which would result in an earlier effective date. Id.; 38 U.S.C.A. § 5109A(a) (West 2002); 38 C.F.R. § 3.105(a) (2012). If a timely notice of disagreement is filed, the appellate process begins and the claim does not become final until a Board decision is issued. See Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final). See also Jones v. Shinseki, 23 Vet. App. 122, 125 (2009), aff'd, 619 F.3d 1368 (Fed. Cir. 2010) ("[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed") (quoting Juarez v. Peake, 21 Vet. App. 537, 543 (2008)). If new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence is received but not acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him"). As neither type of challenge has been made in this case, the claim for an earlier effective date must be dismissed. In an April 2005 rating decision, the RO granted entitlement to a TDIU and assigned the effective date of February 18, 2000, the date of the reopened claim. The Veteran was notified of this decision and his procedural and appellate rights in a May 2005 letter. That letter indicated on page 4 that if the Veteran did not agree with the decision, he should write to the RO and tell them why, and that he had one year from the date of the letter to appeal the decision. The Veteran did not submit any document within a year of the May 2005 letter that could be construed as a notice of disagreement. See 38 C.F.R. § 20.201 (notice of disagreement does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Rather, he submitted a July 2005 statement in support of claim (VA Form 21-4138) indicating that he had been awarded a TDIU, asking that his spouse and child be added to his award, and enclosed a declaration of status of dependents with attached affidavit to amend record of birth, marriage certificate, college enrollment verification form, and request for approval of school attendance. Neither the Veteran's statement nor the documents he submitted can be construed as disagreeing with the effective date assigned for the TDIU and there are no other documents in the claims file received within the one year appeal period. In addition, none of the documents submitted relate to the assignment of the effective date for the TDIU and therefore cannot be considered new and material evidence. In the absence of a timely notice of disagreement or new and material evidence submitted within the one year appeal period, the April 2005 decision, including the assignment of the February 18, 2000 effective date for the TDIU, became final. 38 U.S.C.A. § 7105(a)-(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In June 2006, after the one year appeal period following notification of the April 2005 decision had expired, the Veteran's representative filed a statement requesting that the RO "take action to consider the following: Claim for an earlier effective date for entitlement to individual unemployability." In October 2006, the RO issued a rating decision denying what it termed a claim for an effective date earlier than February 18, 2000 for individual unemployability. In November 2008, the Veteran filed a statement he had been awarded a TDIU in 1994 and should have been paid from the time of that award, and that his statement should be considered another request for back pay on this award. In April 2009, the RO issued a rating decision denying a claim for an earlier effective date for the grant of individual unemployability. The Veteran disagreed with this decision, and the RO issued a statement of the case recharacterizing the issue as whether new and material evidence had been submitted to reopen the previously denied claim for entitlement to an effective date earlier than February 18, 2000 for the grant of individual unemployability. The Veteran filed a substantive appeal and the undersigned took testimony on this issue during the July 2013 Board hearing. While the Board appreciates the efforts of the RO and the contentions of the Veteran and his representative, review of the above evidence reflects that the Board cannot in this decision address the merits of a claim for an earlier effective for the grant of entitlement to a TDIU, for the following reasons. As noted above, the only ways to directly challenge an RO's assignment of an effective date on direct appeal are to file a timely notice of disagreement with the decision or to submit new and material evidence within a year of the decision, either of which prevents the decision from becoming final. 38 U.S.C.A. § 7105(a)-(c); 38 C.F.R. §§ 3.156(b), 20.201, 20.302. As neither type of challenge was made, the RO's April 2005 decision assigning a TDIU effective February 18, 2000 became final. The only way to vitiate this finality and effect a change in the assigned effective date would be to demonstrate CUE in the decision assigning the effective date or CUE in a prior final decision that would result in revision of the decision assigning the effective date. Rudd, 20 Vet. App. at 299 (citing Cook v. Principi, 318 F.3d 1344, 1339 (Fed. Cir. 2002)). There has been no specific allegation of CUE in any prior decision in this case and the RO has not adjudicated any such claim. To the extent the Veteran wishes to raise the issue of CUE with respect to the April 2005 decision assigning the effective date or any other decision, he is free to do so by filing such a motion with the RO. The Veteran has indicated that the effective date should go back to the mid-1990's when he had filed a claim that was never decided. Review of the record fails to support this contention. Several claims were raised during the 1990's to include for service connection and a rating in excess over 20 percent for his low back disorder. All issues raised were the subject of timely rating actions during that time and notice of all decisions reached were provided to the Veteran. No appeal was ever prosecuted. As such, those ratings have all become final and there is no evidence of an open unadjudicated claim during the time period. Given the finality of the April 2005 decision and the absence of any applicable exception to the rule of finality, the Board cannot even address the merits of the Veteran's arguments that he is entitled to an earlier effective date. Any discussion of the merits would be vacated by the Court should the Board's decision be appealed. See Juarez, 21 Vet. App. at 541 (modifying, to remove, that portion of a Board decision that reviewed an effective date related to a finding in a prior RO decision that had not been appealed by the Veteran and had therefore become final). See also Garcia v. Shinseki, No. 11-3074 2013 WL 388989 (Vet. App. Feb. 1, 2013) (agreeing with the Board that appeal of assigned effective date was impermissible under Rudd, but finding denial rather than dismissal "improper because, as the Court stated in Rudd, the Board has no authority to address the appellant's claim," and vacating the portion of the Board's decision addressing the merits of the earlier effective date claim); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Board will therefore neither consider the Veteran's June 2006 and November 2008 statements as constituting valid claims for an earlier effective date, as such freestanding claims are not legally cognizable, nor address the arguments made in support thereof. Rather, the Board will dismiss the claim for an effective date earlier than February 18, 2000 as required by the VA law and regulations by which it is bound. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2012). (CONTINUED ON NEXT PAGE) ORDER The claim for entitlement to an effective date earlier than February 18, 2000, for the grant of entitlement to a TDIU is dismissed. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs