Citation Nr: 18146601 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-42 683A DATE: October 31, 2018 ORDER The request for an effective date prior to March 20, 2001 for the grant of service connection for cardiomyopathy with angina and congestive heart failure, lacking in legal merit, is dismissed. FINDING OF FACT A notice of disagreement with the effective date of March 20, 2001 for the grant of service connection for cardiomyopathy with angina and congestive heart failure assigned by the January 2003 Regional Office (RO) rating decision was not received within one year of the decision, and new and material evidence was not received within one year of the decision. CONCLUSION OF LAW There is no legal claim for an effective date prior to March 20, 2001 for the grant of service connection for cardiomyopathy with angina and congestive heart failure. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from October 1982 to December 1990. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) RO in St. Paul, Minnesota. At the outset, the Board will review the complicated procedural history of the instant matter. On October 14, 2014, the Veteran submitted to VA a statement in support of claim asking that the service connected cardiomyopathy “be made permanent.” The RO took this as a claim for an increased disability rating, and in a March 2015 rating decision, the RO continued the 100 percent disability rating for the service connected cardiomyopathy. Subsequently, in April 2015, the Veteran submitted a VA Form 21 0958, Notice of Disagreement (NOD), in which the Veteran purported to disagree with the “effective date of award” of the service connected cardiomyopathy. Per the form, the Veteran argued that an effective dater earlier than March 20, 2001 for the grant of service connection for cardiomyopathy should have been granted because the disability first appeared in the service treatment records. Pursuant to Rudd, the Board must dismiss the question of an effective date prior to March 20, 2001 for the grant of service connection for cardiomyopathy with angina and congestive heart failure at law. As there is no difference in dismissal due to a lack of jurisdiction and dismissal due to an inability to award benefits at law, the Board will continue its earlier effective date analysis below. A statement of the case (SOC) on the question of an effective date prior to March 20, 2001 for the grant of service connection for cardiomyopathy with angina and congestive heart failure was issued in August 2015. In response, the Veteran submitted a December 2015 VA Form 9, Appeal to Board of Veterans’ Appeals, in which the Veteran argued that an earlier effective date for the grant of service connection for cardiomyopathy was warranted due to clear and unmistakable error (CUE) being present in one or more prior RO rating decisions. As CUE, even if it changes the effective date, is a separate and distinct issue from a traditional earlier effective date issue, which must be appealed within one year of the decision assigning the effective date. In this case, the RO adjudicated the CUE question in a January 2018 rating decision, and found no revision to any prior RO rating decision to be warranted. In April 2018, VA sent the Veteran a letter informing of the January 2018 CUE decision and appellate rights. To date, the Veteran has not submitted a NOD to the RO’s January 2018 finding that regarding CUE. As such, the Board does not have jurisdiction over the question of whether CUE in any prior final RO rating decision warrants revision to allow an earlier effective date for the grant of service connection for cardiomyopathy, and CUE will not be addressed in the instant decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision dismisses the instant appeal as a matter of law, in accordance with Rudd, the Board need not further address the duties to notify and assist in this decision. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Earlier Effective Date for Service Connection for Cardiomyopathy As discussed above, the Veteran argues that an effective date prior to March 20, 2001 for the grant of service connection for cardiomyopathy is warranted as the disability was noted in the service treatment records. Initially, in a January 2003 rating decision, the RO granted service connection for cardiomyopathy and assigned an effective date of March 20, 2001, the date of informal claim. The January 2003 rating decision subsequently became final, as the Veteran did not file a timely NOD to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). After receiving service connection, the Veteran filed multiple subsequent claims for an increased disability rating, all of which became final. Id. Also as discussed above, in April 2015, the Veteran attempted to file a claim, through a NOD to a March 2015 RO rating decision continuing a 100 percent disability rating for the service connected cardiomyopathy, for an earlier effective date for the grant of service connection for cardiomyopathy. To the extent the Veteran attempted to file a freestanding claim for an effective date earlier than March 20, 2001 for the award of service connection for cardiomyopathy, such attempted claim is a legal nullity. See Rudd v. Nicholson, 20 Vet. App. 296, 299 300 (2006). In Rudd, the United States Court of Appeals for Veterans’ Claims (Court) held that, once a decision assigning an effective date has become final, 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 unappealed Board decision. The Court noted that any other result would violate the rule of finality. After a rating decision becomes final, an earlier effective date may only be established by a motion for revision based on CUE. Id. As discussed above, while the Veteran has filed a separate claim on the question of whether CUE in any prior final RO rating decision warrants revision to allow an earlier effective date for the grant of service connection for cardiomyopathy, for the reasons previously addressed, the Board does not have jurisdiction over the CUE issue at this time. For the aforementioned reasons, this attempted freestanding claim for an earlier effective date, filed after multiple final RO rating decisions, is a legal nullity and not a claim or issue to decide on appeal; accordingly, the appeal must be dismissed. Id. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel