Citation Nr: 1548794 Decision Date: 11/19/15 Archive Date: 11/25/15 DOCKET NO. 11-11 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than March 14, 2007, for the grant of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1954 to March 1972. The Veteran died in July 2004, and the appellant claims as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the case was subsequently transferred to the RO in Columbia, South Carolina. The Veterans Benefits Management System (VBMS) electronic claims system contains only the October 2015 brief. The documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. In a March 2007 rating decision, the RO granted service connection for the cause of the Veteran's death and assigned an effective date from March 14, 2007. The appellant was notified of the decision, but she did not appeal any aspect of the RO's decision or submit new and material evidence within the one-year appeal period. The March 2007 rating decision became final. 2. In June 2009, the appellant submitted a freestanding claim for an earlier effective date for the grant of service connection for the cause of the Veteran's death. CONCLUSION OF LAW Entitlement to an effective date earlier than March 14, 2007, for the grant of service connection for the cause of the Veteran's death is dismissed. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that VA's notification and assistance duties are not applicable in this case 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, 231-32 (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). As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on the application of the laws and regulations pertaining to the finality of a RO decision. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004). In this case, the appellant has claimed that she is entitled to an effective date earlier than March 14, 2007, for the grant of service connection for the cause of the Veteran's death. Historically, the Veteran died in July 2004, and the appellant filed a claim for service connection for the cause of the Veteran's death in August 2004. In a February 2005 rating decision, the RO denied the claim, finding that the cause of death was spinal infection due to suspected colon malignancy. Other significant conditions contributing to death were listed as chronic obstructive pulmonary disease and pleural effusions. The RO noted that the Veteran was only service-connected for diabetes mellitus at the time of his death and that there was no evidence that his diabetes contributed significantly to or hasten his death. The appellant was notified of this decision later that month. There is no record of any submissions by the appellant or her representative related to this claim within one year of the date of the denial. The Board notes that the appellant contends that she submitted a timely notice of disagreement, but that when she followed-up with the RO one month later, she was told that there was no record of a notice of disagreement being submitted. See, December 2010 notice of disagreement; August 2011 DRO hearing transcript. In March 2007, the appellant submitted an application to reopen the claim for service connection for the cause of the Veteran's death. Her claim was accompanied by medical treatment records and an opinion from the Veteran's physician that his diabetes mellitus was directly responsible for the Veteran being immunocompromised, which led to the pneumonia and osteomyelitis that were diagnosed at the time of his death. In a March 2007 rating decision, the RO reopened the claim and granted service connection for the cause of the Veteran's death effective from March 14, 2007, which was the date of the appellant's application to reopen. In the decision, the RO found that an earlier effective date was not warranted because the credible evidence used to establish service connection was not received within the appeal period or when the original death claim was decided. The appellant was notified of the rating decision and of her appellate rights, but she did not appeal the effective date for the grant of service connection for the cause of the Veteran's death. The appellant also did not submit new and material evidence within the one-year appeal period, and she does not contend otherwise. In June 2009, the appellant requested an earlier effective date for the grant of service connection for the cause of the Veteran's death. She stated that she received her CHAMPVA card shortly after her claim was granted and that the card had an effective date of March 14, 2007. She stated that, several weeks later, she received a new CHAMPVA card with an effective date of July 22, 2004 (the date of the Veteran's death). She explained that she was requesting an earlier effective date for the grant of service connection for the cause of death based on the fact that her CHAMPVA card had an effective date of July 22, 2004. She believed that they should have the same effective date. In an August 2010 rating decision, the RO denied the appellant's claim for an earlier effective date, finding that, because she did not express disagreement with the February 2005 rating decision within one year of its issuance, that decision is final. In considering the evidence of record under the applicable laws and regulations, the Board concludes that an earlier effective date is not warranted for the grant of service connection for the cause of the Veteran's death. In this regard, the United States Court of Appeals for Veterans Claims (Court) has emphasized that an effective date cannot be challenged with a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rather, if a claimant wishes to obtain an effective date earlier than that assigned in an RO decision, the claimant must file a timely appeal to that decision or submit new and material evidence within the one-year appeal period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302. Otherwise, the decision becomes final, and the only basis for challenging the effective date is a motion to revise the decision on the basis of 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. Rudd, 20 Vet. App. 296 at 299; 38 U.S.C.A. §§ 5109A; 38 C.F.R. §§ 3.105, 20.1400. Initially, the Board notes appellant did not appeal the RO's March 2007 determination granting service connection for the cause of the Veteran's death, effective March 14, 2007, nor did she submit new and material evidence within the one year period following the issuance of the decision. She has not contended otherwise. Under these circumstances, the March 2007 rating decision is final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.1100. The Board also finds that the Veteran has not made a specific allegation of CUE. See, e.g., June 2009 claim; December 2010 notice of disagreement; August 2011 DRO hearing transcript. Notably, a CUE motion is a collateral attack on a final RO decision and by its very nature it must allege an error with some degree of specificity, and each specific theory underlying an attack on a final decision would necessarily constitute a separate claim. See Andre v. Principi, 201 F. 3d 1354, 1361 (Fed. Cir. 2002); Bradley v. Principi, 14 Vet.App. 255, 256 (2001) (per curiam order) (stating that "each [CUE] theory alleged necessarily constitutes a separate claim"); Donovan v. Gober, 10 Vet.App. 404, 407 (1997), aff'd sub nom. Donovan v. West, 158 F.3d 1377 (Fed.Cir.1998); Crippen v. Brown, 9 Vet.App. 412, 420 (1996). Here, although the appellant has argued that she did in fact file a timely notice of disagreement as to the February 2005 rating decision, she does not allege a specific theory underlying an attack on the final decision that would warrant consideration of her pleadings as a motion alleging CUE in either the February 2005 rating decision or the March 2007 rating decision. Based on the foregoing, and in the absence of any applicable exception to the finality rule, the Veteran's claim for an earlier effective date must be dismissed. See Rudd, 20 Vet. App. at 299-300 (a freestanding claim for an earlier effective date "vitiates the rule of finality" and should be dismissed). While the Board acknowledges the appellant's contentions that she in fact filed a timely notice of disagreement to the February 2005 rating decision, this argument cannot be addressed on the merits; any discussion in this regard would be vacated by the Court should the Board's decision be appealed. See Juarez v. Peake, 21 Vet. App. 537, 541 (2008) (modifying, to remove, that portion of a Board decision that reviewed effective date related to a finding in 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 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 decision may be relied upon for any persuasiveness or reasoning it contains). ORDER Entitlement to an effective date earlier than March 14, 2007, for the grant service connection for the cause of the Veteran's death is dismissed. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs