Citation Nr: 1328642 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-07 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than May 8, 2001, for the grant of entitlement to service connection for Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from December 1966 to December 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Virtual VA claims file has been reviewed. FINDINGS OF FACT 1. On July 9, 2002, the Veteran filed a claim of service connection for Type II diabetes mellitus. 2. In a November 2002 rating decision, the RO granted service connection for Type II diabetes mellitus, and assigned a 20 percent disability evaluation effective July 9, 2001. 3. In a February 2004 rating decision, the RO assigned an effective date of May 8, 2001 for the grant of service connection for Type II diabetes mellitus. 4. In a July 2007 decision, the Board denied the Veteran's claim of entitlement to an effective date prior to May 8, 2001 for the grant of service connection for Type II diabetes mellitus. CONCLUSION OF LAW The claim for an effective date prior to May 8, 2001 for the grant of service connection for Type II diabetes mellitus is denied as a matter of law. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2012); 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 impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claim for an earlier effective date, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Indeed, that is the case here, although the Board notes that adequate notice was provided and sufficient evidence was developed in this appeal and that no further development is required. Legal Criteria for an Earlier Effective Date The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of service connection will be the day following the date of separation from service - if the veteran filed a claim within one year after service. Otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). Where compensation is awarded pursuant to a liberalizing law or VA issue, the effective date shall be in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. See 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. If a claim is reviewed at the request of a claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a)(1)-(a)(3). In order for benefits to be paid under the laws administered by the VA, a specific claim in the form prescribed by the Secretary must be filed. See 38 U.S.C.A. § 5101; 38 C.F.R. § 3.151(a). All claims for benefits filed with the VA, formal or informal, must be in writing. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2012). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A report of examination or hospitalization that meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits, if the report relates to a disability that may establish entitlement. Once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: (1) Report of examination or hospitalization by VA or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, only when such reports relate to examination or treatment of a disability for which service- connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157. Analysis of an Earlier Effective Date for Service Connection In this case, the Veteran initially filed a claim of entitlement to service connection for diabetes mellitus, which was received by the RO on July 9, 2002. In a November 2002 rating decision, the RO granted service connection for diabetes mellitus, Type II, effective from July 9, 2001. In a February 2004 rating decision, the RO adjusted the effective date of the grant of service connection to May 8, 2001. The Veteran perfected an appeal as to the issue of entitlement to an earlier effective date, and in a July 2007 decision, the Board denied the Veteran's claim of entitlement to an effective date prior to May 8, 2001 for the grant of service connection for Type II diabetes mellitus. The decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). Nonetheless, in November 2008, the Veteran again requested an earlier effective date prior to May 8, 2001 for the grant of service connection for Type II diabetes mellitus. In this regard, the Veteran claims that he initially filed a claim for Agent Orange in 1984, and that he has been on the Agent Orange registry since 1985. In the alternative, he claims that treatment records reflect an initial diagnosis of diabetes mellitus in 1998. The Veteran asserts that VA had knowledge of his diagnosis of and treatment for diabetes mellitus prior to May 8, 2001. In this regard, the Veteran refers to VA medical records dating back to 1995. Once a decision on a claim becomes final, it cannot be challenged through a freestanding claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009) (rejecting freestanding "finality claim"). Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of the recognized statutory exceptions to finality. See Rudd, 20 Vet. App. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary). To the extent that the Veteran seeks to challenge the effective date assigned in the February 2004 rating decision, and confirmed by the Board's July 2007 decision, via direct appeal, the Board is required to dismiss the claim. Rudd, 20 Vet. App. at 300. The Board's consideration of this claim without dismissing it, if this decision were appealed, would be stricken by the Court. See Juarez v. Peake, 21 Vet. App. 537, 541 (2008) (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). Where assignment of an effective date has become final, a veteran can establish entitlement to an earlier effective date through a finding of clear and unmistakable error (CUE) in a prior rating decision that denied the claim, thus vitiating its finality, or by obtaining a finding of CUE in the decision that assigned the effective date he seeks to challenge. See 38 U.S.C.A. § 5109A(b); 38 C.F.R. § 3.105(a) (CUE reverses or amends a prior rating decision and this action "has the same effect as if the decision had been made on the date of the prior decision"); Knowles, 571 F.3d at 1169 (successful CUE motion need not separately prove that decision was final); Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007) ("allows an appellant to allege CUE in a final effective-date decision on the theory that the RO in that final decision had failed to correctly identify which document was the appellant's claim for purposes of assigning an effective date under section 5110"). The Veteran neither alleged CUE in the Board's July 2007 decision nor identified a particular decision that contained CUE; the Veteran only asked for an earlier effective date, alleging that he had been on the Agent Orange registry since 1985, and that this constituted a claim. A valid CUE motion must allege an error with some specificity. Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ("to reasonably raise CUE there must be some degree of specificity as to what the alleged error is'; '[b]road-brush allegations . . . do not rise 'to the stringent definition of CUE'"). As there is no allegation of CUE in the February 2004 rating decision, or in the Board's July 2007 decision, the Veteran's challenge to the effective date for the grant of service connection for Type II diabetes mellitus is barred as a matter of law. See Rudd, 20 Vet. App. at 297 (holding that a freestanding claim for earlier effective dates vitiates the rule of finality). Since the prior Board decision of July 2007 is final, by law, the Veteran's current freestanding claim for an earlier effective date for the grant of Type II diabetes mellitus must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the claim should be denied on the ground of lack of legal merit). ORDER Entitlement to an effective date prior to May 8, 2001 for the grant of service connection for Type-II diabetes mellitus is dismissed. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs