Citation Nr: 18143658
Decision Date: 10/19/18	Archive Date: 10/19/18

DOCKET NO. 16-35 252A
DATE:	October 19, 2018
ORDER
Entitlement to an effective date earlier than earlier than June 17, 2013 for the grant of service connection for fibromyalgia (myositis) is denied.
FINDING OF FACT
The Veteran’s claim for an earlier effective date for the grant of service connection for fibromyalgia (myositis) constitutes a freestanding claim.
CONCLUSION OF LAW
The criteria for entitlement to an effective date earlier than earlier than June 17, 2013 for the grant of service connection for fibromyalgia (myositis) have not been met.  38 U.S.C. §§ 501, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1988 to July 1992.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in May 2016.
The Veteran was informed of his right to a personal hearing before the Board, but the Veteran declined.
The Board notes that the Veteran filed a notice of disagreement (NOD) in August 2018 appealing a claim for nerve damage of the neck, bilateral lower extremities, and left upper extremity as well as a NOD in September 2018 appealing a claim for chronic fatigue syndrome.  The RO has not filed a statement of the case (SOC) responsive to the Veteran’s NOD, but the Veterans Appeals Control and Locator System (VACOLS) indicates that VA is aware of the Veteran’s NODs and is developing the Veteran’s claim.  
Additionally, the Board notes that the Veteran perfected a claim for entitlement to service connection for hypertension, but, in a January 2018 substantive appeal to the Board, the Veteran indicated that he desired a personal hearing before the Board.  The Veteran has not been provided a personal hearing before the Board yet, and VACOLS indicates that the Veteran’s appeal has not been activated yet.  Therefore, the Board shall not address this claim at this time.
Entitlement to an effective date earlier than earlier than June 17, 2013 for the assignment of service connection for fibromyalgia
At issue is whether the Veteran is entitled to an effective date earlier than June 17, 2013 for the assignment of service connection for fibromyalgia.  The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date.
The Veteran first filed for service connection in June 2013, and, in an August 2013rating decision, the RO granted service connection and assigned a noncompensable disability rating for myositis (claimed as fibromyalgia and joint pains), effective June 17, 2013.  The Veteran subsequently filed an increased rating claim, and, in a May 2016 rating decision, the RO assigned the Veteran an increased disability rating of 40 percent effective May 20, 2014.  The Veteran appealed his disability rating and the effective date for the assignment of service connection.  The Veteran’s increased rating claim was addressed in a December 2015 Board decision.  
The Veteran’s claim for an effective date earlier than June 17, 2013 for the grant of service connection for fibromyalgia (myositis) is denied.  The August 2013 rating decision granting service connection and assigning a noncompensable evaluation and effective date of June 17, 2013 became final after the Veteran failed to submit additional evidence or appeal the decision within one year of notification of the determination.  The Veteran cannot file a new claim seeking an earlier effective date for an award where the decision that assigned the effective date has already become final, because “freestanding” claims for earlier effective dates are not permitted.  Rudd v. Nicholson, 20 Vet. App. 196 (2006).
Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an earlier effective date.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  As such, entitlement to an effective date earlier than June 17, 2013 for the grant of service connection for fibromyalgia (myositis) is denied.
 
BARBARA B. COPELAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	David R. Seaton, Associate Counsel