Citation Nr: 1338617 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-01 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an earlier effective date than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability, including based on an allegation of clear and unmistakable error (CUE) in a March 20, 2007, rating decision. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1984 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied, in pertinent part, the Veteran's claim for a disability rating greater than 40 percent for a thoracolumbar spine disability (which was characterized as degenerative disc disease of the thoracolumbar spine). The RO noted in this decision that a claim of service connection for a thoracic spine disability had been referred to it by the Board in November 2010. The RO granted service connection for a thoracic spine disability effective September 22, 2006 (the date of VA treatment records showing such disability). The RO also concluded that, because disabilities of the thoracic and lumbar spine were evaluated under the same rating criteria and because the Rating Schedule does not permit separate ratings for the same disability (as this would constitute pyramiding), no change was warranted in the 40 percent rating assigned effective November 18, 2006, for the Veteran's service-connected thoracolumbar spine disability. The Veteran disagreed with this decision in December 2011, seeking both an earlier effective date for the grant of service connection for a thoracic spine disability and an earlier effective date than November 18, 2006, for a 40 percent rating for his service-connected thoracolumbar spine disability. In a February 2012 rating decision, the RO denied the Veteran's TDIU claim. Having reviewed the voluminous evidence of record, the Board finds that the issues are characterized more appropriately as stated on the title page of this decision. In February 2013, the Board assigned an earlier effective date of July 10, 1986, for the grant of service connection for a thoracic spine disability. The Board also found that it had jurisdiction over the Veteran's TDIU claim and remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding TDIU claim cannot be considered separate and apart from increased rating claim). Because adjudication of the Veteran's earlier effective claim for a grant of service connection for a thoracic spine disability likely would impact adjudication of his claim for an earlier effective date than November 18, 2006, for a 40 percent rating for his service-connected thoracolumbar spine disability, these claims were inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board deferred adjudication of the Veteran's claim for an earlier effective date than November 18, 2006, for a 40 percent rating for his service-connected thoracolumbar spine disability. In a March 2013 rating decision, the RO implemented the Board's February 2013 decision and granted service connection for a thoracic spine disability, assigning a 10 percent rating effective July 10, 1986 (the day after the date of the Veteran's discharge from active service). Because this constituted a complete grant of benefits, and despite the Veteran's repeated assertions to the contrary, an issue relating to entitlement to service connection for a thoracic spine disability is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). The Veteran requested that his TDIU claim be withdrawn in a written statement received by the Board in October 2013. See 38 U.S.C.A. §§ 7105(b), (d) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013). The Board notes that, in multiple lengthy written submissions to VA, the Veteran has contended strenuously that multiple claims he filed for VA disability compensation remained pending or unadjudicated either by the RO, the AMC, or the Board. Despite the Veteran's repeated assertions to the contrary, a detailed review of his voluminous claims file indicates that, with the exception of the claims listed on the title page of this decision, no other claims remain pending or unadjudicated by VA. It appears instead that, with respect to the claims cited by the Veteran in the relevant lay statements currently of record, all of them have been adjudicated either by the RO or by the Board in decisions which were not appealed by the Veteran and are now final. To the extent that the Veteran argues otherwise, the Board finds that his argument is without merit. As is explained below in greater detail, it appears that the Veteran is attempting to reopen a prior final rating decision dated in March 2007 which assigned a 40 percent rating effective November 18, 2006, for his service-connected thoracolumbar spine disability. The March 2007 decision was not timely appealed and became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2013). Although the Veteran's arguments concerning the alleged VA error in the March 2007 rating decision are not a model of clarity, it appears that he essentially contends that VA committed CUE in the March 2007 rating decision by not assigning an effective date of July 10, 1986, for a 40 percent rating for his service-connected thoracolumbar spine disability. The Board notes that the Court has barred appellants from seeking to disturb the finality of a prior rating decision by filing a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Accordingly, the claim of entitlement to an earlier effective date than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability must be dismissed. The Board finally notes that there appears to be a factual dispute in the record as to whether the Veteran reported for a VA examination to determine the impact of his service-connected disabilities on his employability when it was scheduled in May 2013. As noted above, the Board accepted jurisdiction over the Veteran's TDIU claim and remanded it to the RO/AMC in February 2013. See Board decision dated February 21, 2013, at pp. 2-3. The Board directed that the RO/AMC schedule the Veteran for appropriate examination to determine the impact of his service-connected disabilities on his employability. Id., at pp. 10. The RO properly requested that this examination be scheduled in June 2013. In an administrative note included in the Veteran's VA outpatient treatment records and dated in August 2013, a VA nurse practitioner stated that the Veteran had reported for this examination "but refused stating that the [VA examination request form] was 'wrong' and that his claim was supposed to 'go to court.'" The RO notified the Veteran later in August 2013 that it had been informed that he had refused his VA examination and asked him to advise VA of his intentions. In October 2013 correspondence, the Veteran asserted that, in fact, when he reported for VA examination, he had not refused the examination but instead had been told by VA Medical Center staff when he checked in on the day of his VA examination that it could not be performed because the Board required that it be performed by a medical doctor (MD) and no MD was available to conduct it on the date that the Veteran reported for it. The Board observes in this regard that the United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Having reviewed the voluminous record evidence, and especially in light of the Veteran's withdrawal of his TDIU claim in October 2013, the Board finds that another remand to attempt to obtain a VA examination addressing the impact of his service-connected disabilities on his employability is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a rating decision dated on April 28, 1987, and issued on May 6, 1987, the RO granted the Veteran's claim of service connection for chronic low lumbar strain and assigned a zero percent rating effective July 10, 1986. 2. The Veteran filed an increased rating claim for low lumbar strain in statements on a VA Form 21-4138 date-stamped as received by VA on April 10, 2006. 3. In a rating decision dated on March 20, 2007, and issued to the Veteran and his service representative on that date, the RO assigned a higher 40 percent rating effective November 18, 2006, for the Veteran's service-connected low lumbar strain (which was characterized as a thoracolumbar spine disability); this decision was not appealed and became final. 4. In the currently appealed rating decision dated on October 27, 2011, and issued to the Veteran on November 4, 2011, the RO denied the Veteran's claim for a disability rating greater than 40 percent prior to November 18, 2006, for his service-connected thoracolumbar spine disability. 5. In a letter dated on December 28, 2011, the Veteran expressed disagreement with the effective date assigned for a 40 percent rating for his service-connected thoracolumbar spine disability. 6. There is no correspondence in the claims file expressing any disagreement with the March 20, 2007, rating decision dated within 1 year of this rating decision. 7. In a written statement date-stamped as received by the Board on October 23, 2013, prior to the promulgation of a decision in this appeal, the Veteran requested a withdrawal of his appeal with respect to the denial of his TDIU claim. CONCLUSIONS OF LAW 1. To the extent that he is attempting to disturb the finality of the March 20, 2007, rating decision, the Veteran's claim of entitlement to an earlier effective date than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability, to include based on CUE, is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The criteria for withdrawal of an appeal by the Veteran have been met on the issue of entitlement to a TDIU. 38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's earlier effective date claim for a 40 percent rating prior to November 18, 2006, for a thoracolumbar spine disability is a "downstream" element of the RO's grant of a 40 percent rating in a March 2007 rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In June 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. This letter also noted other types of evidence the Veteran could submit in support of his claim. The Veteran further was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the June 2006 VCAA notice letter, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the claim of entitlement to an earlier effective date than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability, to include based on CUE, must be dismissed. See Rudd, 20 Vet. App. at 296. Because his earlier effective date claim is being dismissed as a matter of law (as explained in more detail below), any failure by the RO to provide notice as to the disability rating under the VCAA cannot be considered prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Because the Veteran's earlier effective date claim is being dismissed as a matter of law, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the Veteran) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the Veteran's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to the earlier effective date claim on appeal. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Earlier Effective Date Claim The Veteran contends that he is entitled to an earlier effective date than November 18, 2006, for a 40 percent rating for his service-connected thoracolumbar spine disability. Although the Veteran's arguments are not a model of clarity, it appears that he is asserting that the prior rating decision issued in March 2007 which assigned a higher 40 percent rating effective November 18, 2006, for his service-connected thoracolumbar spine disability is not final and he is entitled to an effective date of July 10, 1986 (the day after the date of his discharge from active service) for this disability rating. Law and Regulations In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after 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. A "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, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). 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). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157. Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply 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. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. Factual Background In a rating decision dated on April 28, 1987, and issued on May 6, 1987, the RO granted the Veteran's claim of service connection for chronic low lumbar strain and assigned a zero percent rating effective July 10, 1986. The RO noted that, although the Veteran's complete service treatment records were not available for review, the available service treatment records showed that a Physical Evaluation Board (PEB) diagnosed the Veteran as having a thoracolumbar spine disability (which was characterized as a chronic low back strain). The RO concluded that this disability was related to active service. The RO also essentially determined that July 10, 1986, was the appropriate effective date for a grant of service connection and a zero percent (non-compensable) rating for a thoracolumbar spine disability because that was the day after the date of the Veteran's discharge from active service. This decision was not appealed and became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.302 (2013). The Veteran next submitted a VA Form 21-4138 date-stamped as received by VA on April 10, 2006, in which he requested an "increase of my 0%" disability rating for his service-connected thoracolumbar spine disability (which he characterized as "low lumbar strain"). VA examinations of the Veteran's spine were conducted in September and in November 2006. The November 2006 VA examiner stated, "[The Veteran] is unable to flex his lower back more than 15 to 20 degrees due to pain. He cannot extend his back beyond neutral position. He cannot bend laterally to either side beyond about 10 degrees." This examiner concluded that the Veteran's thoracolumbar spine disability was related to active service. The impression was chronic lumbosacral strain. In a rating decision dated on March 20, 2007, and issued to the Veteran and his service representative on that date, the RO assigned a higher 40 percent rating effective November 18, 2006, for the Veteran's service-connected low lumbar strain (which was characterized as a thoracolumbar spine disability). The RO concluded that this was the appropriate effective date for a 40 percent rating for the Veteran's service-connected thoracolumbar spine disability because it was the date of the VA examination which showed worsening disability. The RO also noted that, because there was a likelihood of improvement, the 40 percent rating was not considered permanent and was subject to a future routine examination. This decision was not appealed and became final. Id. The Veteran next submitted a letter dated on February 28, 2009, and date-stamped as received by the Board on March 24, 2009. He asserted in this letter that there was CUE with respect to the rating assigned for his service-connected thoracolumbar spine disability. Although his assertions are not a model of clarity, the Veteran appears to suggest that he is entitled to an earlier effective date of July 10, 1986, for the 40 percent rating for his service-connected thoracolumbar spine disability and his increased rating claim had been pending since at least that date. On routine future VA spine examination in August 2009, the VA examiner stated that the Veteran "tends to splint his entire spine during the interview, and he moves about the examining room with great difficulty, requiring assistance to even climb on and off the examining table." The Veteran "stands in apposition of about 15 degrees of flexion. He is unable to flex voluntarily more than about 5 degrees, and he is unable to stand erect, bringing his spine to the neutral position because of complaints of pain." Lateral bending was limited to 10 degrees bilaterally. Rotation was limited to 15 degrees bilaterally. There was no change in range of motion upon repetitive testing. The VA examiner concluded: This [Veteran's] multiple subjective complaints do not appear to be supported by objective x-ray and physical findings. This is not to say that the [Veteran's] pain is not real, but it would be the opinion of this examiner that it is probably not entirely due to the degenerative disk disease of the lumbar spine. This examiner also stated that the Veteran's "lower back condition has probably not changed significantly since the last evaluation" in November 2006. The impression was degenerative disk disease. In a rating decision dated on August 29, 2009, and issued to the Veteran on September 9, 2009, the RO denied his increased rating claim for a thoracolumbar spine disability. This decision was not appealed and became final. Id. In a decision dated on November 30, 2010, the Board noted that a claim of service connection for a thoracic spine disability had been inferred from a review of the record evidence and referred this claim to the RO for appropriate action. See Board decision dated November 30, 2010, at pp. 3. On VA spine examination in January 2011, the VA examiner stated: The Veteran walks with a severely antalgic gait due to right knee pain and pain in his lumbar, thoracic, and cervical spine areas. There is a slight limp to the left. The Veteran moves about in the examining room with complaints of severe pain and moved very slowly. His gait is hesitant and short-stepped. He mounts the examining table with great caution and guarding with complaints of pain, and he lies down on the examining table in the typical manner of one with back pain, lying on his side, and flexing his knees first and then turning to his back. He was able to lie on the examining table but with great pain. The Veteran stood "in a 15 degree kyphotic position of the thoracic spine." Physical examination showed moderate tenderness of the lumbar spinous processes, no definite tenderness of the thoracic processes, "no evidence of comparable muscle spasm; although this is difficult to evaluate because of the thickened subcutaneous skin overlying the muscles." Lumbar spine flexion was to 40 degrees "at the beginning of pain and 42 degrees at the limit of pain." Flexion was to 25 degrees and with "severe pain throughout." Lateral bending was 18 degrees to the left and 15 degrees to the right "with pain throughout the ranges of motion with the inability of the Veteran to force the range of motions past the recorded degrees." Left lateral rotation was to 20 degrees and to 18 degrees on the right. The diagnoses included degenerative joint disease of the thoracic and lumbar spine As noted in the Introduction, in the currently appealed rating decision dated on October 27, 2011, and issued to the Veteran on November 4, 2011, the RO denied the Veteran's claim for a disability rating greater than 40 percent prior to November 18, 2006, for his service-connected thoracolumbar spine disability. As also noted in the Introduction, the RO concluded that, because disabilities of the thoracic and lumbar spine were evaluated under the same rating criteria and because the Rating Schedule did not permit separate ratings for the same disability (as this would constitute pyramiding), no change was warranted in the 40 percent rating assigned effective November 18, 2006, for the Veteran's service-connected thoracolumbar spine disability. A VA Form 21-0820, "Report of General Information," dated on December 22, 2011, indicates that the Veteran was contacted by RO personnel by telephone regarding his appeal. The Veteran asserted that his claim was "part of a 1985 claim that has not been resolved. Please look into an earlier effective date." In a letter dated on December 28, 2011, the Veteran expressed disagreement with the effective date assigned for a 40 percent rating for his service-connected thoracolumbar spine disability. He contended that he was entitled to an effective date of July 10, 1986, for this disability rating. Analysis The Board finds that the Veteran's claim of entitlement to an earlier effective date than November 18, 2006, for the assignment of a 40 percent rating for his service-connected thoracolumbar spine disability must be dismissed as a matter of law. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a rating decision has become final, as is the case here with the March 20, 2007, rating decision which assigned a 40 percent rating effective November 18, 2006, for the Veteran's service-connected thoracolumbar spine disability, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an RO decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. 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). In DiCarlo, the Federal Circuit specifically held that, "Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded." Id., at pp. 55-56 (citations omitted). In this case, it is undisputed that the March 20, 2007, rating decision, which assigned a 40 percent rating effective November 18, 2006, for the Veteran's service-connected thoracolumbar spine disability is final because the Veteran did not initiate a timely appeal by a filing a Notice of Disagreement or otherwise disagreeing with this decision. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Despite the Veteran's repeated and voluminous assertions to the contrary, a review of the claims file shows that, following the issuance of the March 2007 rating decision, he did not submit additional relevant evidence or argument concerning the 40 percent rating assigned effective November 18, 2006, for his service-connected thoracolumbar spine disability within 1 year of this decision such that it is rendered non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). Following the issuance of the March 2007 rating decision, the next correspondence concerning the 40 percent rating assigned for the Veteran's service-connected thoracolumbar spine disability was not received until March 2009, or approximately 2 years later. (The Board notes parenthetically that, although the Veteran appears to be referring to a February 2009 Board decision in his March 2009 statement, that Board decision did not address the Veteran's service-connected thoracolumbar spine disability.) The RO then properly adjudicated an increased rating claim for a thoracolumbar spine disability in an August 2009 rating decision, noting that a routine VA examination conducted earlier than same month had found no significant changes in the Veteran's back symptomatology since his November 2006 VA examination (which formed the basis for the 40 percent rating currently assigned for his service-connected thoracolumbar spine disability). The August 2009 rating decision was not appealed and became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. The Board further finds that the Veteran clearly was on notice as to how to initiate an appeal of a rating decision as he initiated timely appeals of other rating decision dated both before and after the March 2007 rating decision. The Veteran essentially seeks to reopen the prior final rating decision in March 2007 by means of a claim for an effective date earlier than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability. He has asserted essentially that it was CUE for the RO not to grant him a 40 percent rating for a thoracolumbar spine disability effective as of the day after his discharge from active service. While the Board expresses no opinion on the eventual success of such a motion, the proper way to assert error in a final decision would be through an allegation brought to the RO that the February 21, 2003, rating decision, which granted service connection for chronic dermatitis and assigned a 10 percent rating effective August 23, 1993, contained CUE. 38 U.S.C. § 5109A; see Moody v. Principi, 360 F.3d 1306, 1309 (Fed.Cir.2004). The Veteran is advised in this regard that a mere disagreement with how the facts were weighed in a prior final rating decision does not rise to the level of a valid CUE claim. See, for example, Luallen v. Brown, 8 Vet. App. 92, 96 (1995), and Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). (The Board notes parenthetically that it appears from a review of the Veteran's multiple submissions to VA concerning his allegations of CUE in prior rating decisions concerning his service-connected thoracolumbar spine disability that he merely disagrees with how VA weighed the facts in those decisions.) The Board cannot adjudicate the Veteran's earlier effective date claim to the extent that it attempts to reopen a prior final rating decision, including on the basis of CUE, without violating the Court's express prohibition against freestanding earlier effective date claims found in Rudd. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, there is no legal entitlement to an effective date earlier than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability and the Board must be dismissed. See Sabonis, 6 Vet. App. at 426 (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Dismissal of TDIU Claim As noted in the Introduction, the Board accepted jurisdiction over the Veteran's TDIU claim in its February 2013 decision and remanded this claim to the RO/AMC for additional development. See Board decision dated February 21, 2013, at pp. 2; see also Rice, 22 Vet. App. at 447. As also noted in the Introduction, the Veteran requested that his TDIU claim be withdrawn in a written statement received by the Board in October 2013. See 38 U.S.C.A. §§ 7105(b), (d) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013). The Board observes that it may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2013). Given the Veteran's October 2013 statement requesting withdrawal of his appeal for a TDIU, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. ORDER Entitlement to an earlier effective date than November 18, 2006, for a 40 percent rating for a thoracolumbar spine disability, including based on an allegation of clear and unmistakable error (CUE) in a March 20, 2007, rating decision, is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs