Citation Nr: 1647692 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 12-17 710A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to August 3, 2000 for the grant of service connection for diabetes mellitus with diabetic retinopathy and carotid stenosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served in the United States Army from September 1965 to July 1967. His service included deployment to the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In his July 2012 substantive appeal, the Veteran requested a hearing before a member of the Board. In September 2016, he received a notice letter informing him that the hearing had been scheduled for October 2016; the Veteran did not appear for the hearing. His hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2015). FINDINGS OF FACT 1. The July 2004 memorandum rating decision that assigned an August 3, 2000 effective date for the grant of service connection for diabetes mellitus with diabetic retinopathy and carotid stenosis is final. 2. A claim for an effective date prior to August 3, 2000 for the grant of service connection for diabetes mellitus with diabetic retinopathy and carotid stenosis was received in May 2010. CONCLUSION OF LAW The appeal of entitlement to an effective date prior to August 3, 2000 for the grant of service connection for diabetes mellitus with diabetic retinopathy and carotid stenosis is dismissed as a matter of law. 38 U.S.C.A. §§ 1154(a), 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.400, 3.816 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notice and assistance to a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b), (c) (2015). The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the facts in this case are not in contention and the law is dispositive, further discussion regarding VA's duties pursuant to the VCAA is not required. II. Earlier Effective Date The Veteran seeks an effective date prior to August 3, 2000 for the grant of service connection for diabetes mellitus with diabetic retinopathy and carotid stenosis (hereinafter referred to as "diabetes"). For the reasons that follow, the appeal is dismissed as a matter of law. A review of the record shows that the Veteran's first and only claim for service connection for diabetes was received by the RO on August 3, 2000. See VA Form 21-526, Application for Compensation or Pension. The claim was denied in a May 2001 rating decision, but shortly after it was granted on a presumptive basis as associated with herbicide exposure in the Republic of Vietnam in an August 2001 rating decision. An effective date of July 9, 2001 was assigned. Pursuant to a court order in Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II), the effective date of the grant of service connection was reviewed in an April 2002 rating decision and amended to August 3, 2000, the date of receipt of the initial claim of service connection for diabetes. Pursuant to a court order in Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III), the effective date of the grant of service connection was again reviewed in a July 2004 memorandum rating decision and the date of August 3, 2000 was maintained. The Veteran did not appeal the July 2004 memorandum rating decision and it became final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.105, 20.200. The Veteran's current claim for an earlier effective date for the grant of service connection for diabetes was received in May 2010. However, once a rating determination that establishes an effective date becomes final, the only way that a decision may be revised is if it contains clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). Any other result would vitiate the rule of finality. Id. In other words, there can be no "freestanding" claim for an earlier effective date. Id. Here, the Veteran has not contended that the July 2003 rating decision contained clear and unmistakable error. Therefore, in light of the finality of the July 2004 memorandum rating decision and in the absence of a claim that this decision was clearly and unmistakably erroneous, the Veteran cannot obtain an effective date prior to August 3, 2000 for the grant of service connection for diabetes. Any assertion that he should be granted an earlier effective date cannot be pursued without formally attempting to vitiate the July 2004 memorandum rating decision and, accordingly, is prohibited. As the Veteran's appeal does not present a legal basis for which relief may be granted, it is dismissed. Rudd, 20 Vet. App. at 299-300; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal of entitlement to an effective date prior to August 3, 2000 for the grant of service connection for diabetes is dismissed as a matter of law. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs