Citation Nr: 1336125 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 13-21 230 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to an effective date earlier than January 15, 2003, for the award of service connection for residuals of a left nephrectomy, for accrued benefits purposes. [The matter of whether Board decisions of September 1956 and October 1967 involved clear and unmistakable error is addressed in a separate decision.] REPRESENTATION Appellant represented by: Agnes S. Wladyka, Attorney at Law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to February 1956. He died in April 2008. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from a January 2011 RO decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a March 2008 decision, the RO implemented a Board grant of service connection for residuals of a left nephrectomy; assigning an effective date of January 2003. 2. The Veteran did not challenge the assigned effective date before his death; the appellant did not challenge the effective date until March 2010. CONCLUSIONS OF LAW 1. The March 2008 RO decision which assigned a January 2003 effective date for the grant of service connection for residuals of a left nephrectomy is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302 , 20.1103 (2013). 2. The criteria for an effective date prior to January 2003, for the award of service connection for residuals of a left nephrectomy are not met, as neither the Veteran nor the appellant filed a timely challenge to the effective date assigned. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2009); Rudd v. Nicholson, 20 Vet. App. 296 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking an earlier effective date for the award of service connection for residuals of a left nephrectomy. She contends, in essence, that the benefit should have been granted effective immediately after the Veteran's discharge from service. Historically, during service, the Veteran was initially diagnosed with a congenital kidney disorder. Testing done while he was on active duty revealed a nonfunctioning left kidney and severe left hydronephrosis. He underwent surgical removal of the left kidney in December 1955, and was discharged soon after. The Veteran applied for service connection and VA compensation following discharge. The RO denied the claim and he appealed it to the Board, which performed an independent review and denied the appeal in September 1956. The Veteran sought to reopen the claim in 1966. The RO declined to reopen in an October 1966 determination, and the Veteran again appealed to the Board. In October 1967, the Board also declined to reopen the prior, final denial. No further communication was received from the Veteran until January 2003, when he again sought to reopen the prior denial. This was denied by the RO and the Board, and the Veteran pursued an appeal to the United States Court of Appeals for Veterans Claims (Court). In April 2007, the Court approved a joint motion for remand filed by the parties to the case, vacated the Board's 2006 denial, and remanded the matter to the Board for further review. Following additional evidentiary development, the Board granted service connection for residuals of a left nephrectomy in February 2008. The RO implemented the grant in March 2008, assigning an effective date of January 15, 2003, reflecting the date the Veteran's claim for service connection was received by VA. This decision became final one year after he was notified of it. Thus finality attached to the service connection grant and to the choice of the effective date in March 2009. 38 U.S.C.A. § 7105 ; 38 C.F.R. §§ 20.302 , 20.1103. As set forth above, the Veteran died in April 2008. The appellant filed a claim for service connection for the cause of the Veteran's death in May 2008, which was granted by the RO in September 2008. In March 2010, the appellant's attorney filed two communications with the RO in which she requested that the RO "reopen the Veteran's initial claim ... decided by the Board ... in 1956, on the basis of clear and unmistakable error." She also indicated that she would file a brief as to why the earlier 1956 Board decision should not be reopened. In a December 2010 communication, she indicated that the appellant was seeking an effective date in February 1956 reflecting the date of the Veteran's discharge from service, for the grant of service connection for residuals of a left nephrectomy based upon the submission of new and material evidence and/or through clear and unmistakable error, notwithstanding the fact that it is unclear is the appellant has standing to file such a claim. The RO interpreted these somewhat confusing statements as a claim for an earlier effective date for service connection for residuals of the left nephrectomy based upon an allegation of clear and unmistakable error in the 1956 and 1966 Board decisions. In a February 2011 decision, the RO denied these claims. The appellant's attorney has perfected a timely appeal of this 2011 determination. Unfortunately, in this case, an earlier effective date for the grant of service connection for residuals of the left nephrectomy is prohibited by law. The case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error (CUE). The Rudd Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. As such, any freestanding claim for an earlier effective date for a VA benefit is precluded by law. In this case, it is the March 2008 decision assigning the effective date which the appellant is, in fact, challenging. However, under Rudd, she is required to challenge the effective date within one year, before the March 2008 decision became final. She did not do this; rather she waited until 2010 to request an earlier effective date. The Board is cognizant that her husband, the Veteran, died during that year following the March 2008 decision, and that she was understandably highly distracted. Such distractions are one of the reasons that the authors of the governing statute provided a year for filing such a challenge. The appellant was also represented. The choice of the one year timeframe was made by the United States Congress when the statute was drafted, and endorsed by the President when he signed the law; therefore the Board has no discretion to waive this time limitation. The facts of the current appeal are clear. The Veteran did not appeal the effective date of the benefit at issue prior to his death. The appellant also did not challenge the effective date, either by filing a motion to substitute for her husband after his death, or in the context of her claim for dependency and indemnity compensation based upon service connection for the cause of his death. (Indeed, her standing with regard to the current appeal is somewhat unclear.) Rather, she raised the question as to the effective dates following the expiration of one year, when the RO's decision assigning the effective date had become final. Thus, her 2010 claim can only be viewed as a freestanding claim for an earlier effective date, which is an impermissible end run around the requirement to challenge such a final decision. As such, the current appeal must be dismissed. The Board also observes that the appellant has not raised a claim of clear and unmistakable error in the RO's choice of effective date in the March 2008 decision under the provisions of 38 C.F.R. § 3.105(a). Such claims are subject to a high standard of review and must be pled with specificity. The CUE claim in the Board decision will be addressed in a separate decision. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, with regard to the duty to assist, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his/her claim. 38 U.S.C.A. §§ 5103A; 38 C.F.R. § 3.159. In any event, governing law and regulation provide that the VA has no duty to provide notice or assistance in developing claims when, as a matter of law, entitlement to the benefit claimed cannot be established. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b)(3). Such are the circumstances present in the current appeal. ORDER The appeal is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs