Citation Nr: 1751293	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  14-07 390A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to an effective date earlier than September 15, 1998, for the grant of dependency and indemnity compensation (DIC) for service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

T. J. Anthony, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1965 to December 1967.

The Veteran passed away in June 1992.  The appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In September 2016, the appellant testified at a hearing before the undersigned Veterans Law Judge via video conference.  A transcript of the hearing is associated with the record.

The Board notes that the RO framed the issue on appeal as involving an allegation of clear and unmistakable error (CUE), to include when it certified the appeal to the Board.  See VA Form 8, Certification of Appeal, dated in November 2015.  As is more thoroughly explained in the decision below, the Board finds no indication that the appellant has properly alleged CUE in a rating decision or the Board's August 2009 decision, which granted entitlement to an effective date of September 15, 1998, for the grant of DIC for service connection for the cause of the Veteran's death.  Rather, she has only generally alleged that an earlier effective date is warranted based on an earlier claim.  Accordingly, the Board has reframed the issue on appeal as listed on the title page.


FINDINGS OF FACT

1.  A January 2008 rating decision granted the appellant entitlement to DIC for service connection for the cause of the Veteran's death and assigned an effective date of May 1, 2000; the appellant perfected a timely appeal to the Board of the effective date assigned in the January 2008 rating decision.

2.  In its August 2009 decision, the Board granted the appellant entitlement to an effective date of September 15, 1998; the appellant has not submitted a motion for reconsideration of the Board decision or a motion for revision of the Board decision based on CUE, and did not timely appeal that decision to the United States Court of Appeals for Veterans Claims (Court).

3.  In January 2010, the appellant submitted a freestanding claim seeking an earlier effective date for the grant of DIC for service connection for the cause of the Veteran's death.


CONCLUSION OF LAW

The August 2009 Board decision is final, and the Board has no authority to adjudicate the freestanding claim for an earlier effective date for the grant of DIC for service connection for the cause of the Veteran's death; therefore, the claim must be dismissed.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1001, 20.1100, 20.1404 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017).

However, the facts of this case are not in dispute.  Instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the finality of Board decisions and the assignment of effective dates.  The duty to notify and assist is therefore inapplicable and need not be considered with regard to the claim for entitlement to an effective date earlier than September 15, 1998, for the grant of DIC for service connection for the cause of the Veteran's death.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

Analysis

The appellant seeks entitlement to an effective date effective date earlier than September 15, 1998, for the grant of DIC for service connection for the cause of the Veteran's death.  She contends that she initially submitted a claim for DIC for service connection for the cause of the Veteran's death in July 1992, that she continuously prosecuted that claim through the grant of that benefit, and that she therefore is entitled to an effective date in July 1992 for the grant of that benefit.  See, e.g., VA Form 21-4138, Statement in Support of Claim, received in July 2010.

Applicable law and regulations provide that the effective date of a grant of compensation or DIC 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. § 5110(a); 38 C.F.R. § 3.400.  However, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a decision establishing an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error.  The Court noted that any other result would vitiate the rule of finality.  Accordingly, the Court found that there can be no valid freestanding claim for an earlier effective date.  Therefore, if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed.

In this case, the January 2008 rating decision granted entitlement to DIC for service connection for the cause of the Veteran's death and assigned an effective date of May 1, 2000.  The appellant perfected an appeal to the Board of the effective date assigned in the January 2008 rating decision.  In August 2009, the Board issued a decision granting entitlement to an effective date of September 15, 1998.  The appellant did not file a motion for reconsideration of the decision, nor was such reconsideration ordered by the Chairman of the Board.  See 38 C.F.R. § 20.1001.  The appellant also has not submitted a motion for revision of the August 2009 Board decision on the basis of CUE.  Specifically, her general contentions that the effective date for the grant of DIC for service connection for the cause of the Veteran's death should be based on an earlier claim submitted in July 1992 do not meet the filing and pleading requirements described in 38 C.F.R. § 20.1404 because they do not set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.  Finally, the appellant also did not appeal the claim to the Court within the prescribed period of time.  Accordingly, the August 2009 Board decision is final.  See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100.

The Board further notes that the appellant may not challenge the merits of the Board's August 2009 decision by expressing disagreement with the September 2009 rating decision issued by the RO to implement the Board's decision.  See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) ("a RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal.").  As such, the September 2009 rating decision's implementation of the Board's grant of an effective date of September 15, 1998, for the grant of DIC for service connection for the cause of the Veteran's death is not a valid target for a notice of disagreement or for a CUE claim under 38 C.F.R. § 3.105.

Because the August 2009 Board decision is final and CUE has not been found in that decision, the appellant's later submissions seeking entitlement to an effective date earlier than September 15, 1998, for the grant of DIC for service connection for the cause of the Veteran's death constitute a freestanding claim for an earlier effective date.  The Board has no authority to adjudicate such a freestanding claim for an earlier effective date.  Rudd, 20 Vet. App. at 299-300.

The Board is bound by the relevant laws and regulations.  38 U.S.C. § 7104.  Although the RO adjudicated the appellant's earlier effective date claim on the merits, freestanding claims for earlier effective dates are not proper claims subject to adjudication.  Rudd, 20 Vet. App. 296.  As such, it is appropriate to dismiss any such attempted claims because they cannot be entertained.  Id.  A claimant can only establish an earlier effective date following a final Board decision by demonstrating CUE in that decision.  As noted above, the appellant has not submitted a motion for revision of the August 2009 Board decision on the basis of CUE that meets the filing and pleading requirements set forth in 38 C.F.R. § 20.1404.  Therefore, the appellant's freestanding claim for an earlier effective date for the grant of DIC for service connection for the cause of the Veteran's death must be dismissed.



ORDER

The claim for entitlement to an effective date earlier than September 15, 1998, for the grant of DIC for service connection for the cause of the Veteran's death is dismissed.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs