Citation Nr: 18147532 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-40 759 DATE: November 6, 2018 ORDER Service connection for tension headaches as secondary to the service-connected psychiatric disability is granted. Service connection for depression is denied. Service connection for tinnitus is denied. Service connection for sleep apnea is denied. The application to reopen the claim for service connection for diabetes mellitus is denied. The application to reopen the claim for service connection for hypertensive vascular disease (also claimed as high blood pressure) is denied. The application to reopen the claim for service connection for a heart disability, post-pacemaker implantation (also claimed as ischemic heart disease) is denied. A rating in excess of 50 percent for favorable ankylosis of all fingers of the right hand due to ulnar nerve paralysis is denied. Entitlement to an effective date earlier than January 22, 2001, for the assignment of a 50 percent rating for favorable ankylosis of all fingers of the right hand due to ulnar nerve paralysis is dismissed. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s currently diagnosed tension headaches are, at least in part, secondary to his service-connected psychiatric disability. 2. The Veteran is not currently diagnosed with a distinct depressive disorder; his depressed mood symptoms are associated with his already service-connected anxiety disorder. 3. The lay and medical evidence does not show a current diagnosis of tinnitus. 4. The Veteran is not currently diagnosed with a distinct sleep apnea disability; his symptoms of sleep difficulty are a part of his already service-connected anxiety disorder. 5. In an unappealed November 2004 rating decision, the RO denied the claim for service connection for hypertensive vascular disease. 6. Evidence received since the November 2004 rating decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for hypertensive vascular disease. 7. In an unappealed April 2009 rating decision, the RO denied reopening the claim for service connection for diabetes mellitus. 8. Evidence received since the April 2009 rating decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes. 9. In an unappealed December 2012 rating decision, the RO denied reopening the claim for service connection for a heart disability. 10. Evidence received since the December 2012 rating decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a heart disability. 11. The Veteran’s right-hand disability is not manifested by complete paralysis of the ulnar nerve or unfavorable ankylosis of the fingers. 12. The request for an effective date earlier than January 22, 2001, for the assignment of a higher disability rating for right hand disability is an improper, free-standing claim that attempts to vitiate the finality of the March 2001 rating decision. CONCLUSIONS OF LAW 1. The criteria for service connection for tension headaches as secondary to the service-connected psychiatric disability are met. 38 U.S.C. §§ 1110, 5107(b); 8 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for depression are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The November 2004 rating decision denying the claim for service connection for hypertensive vascular disease is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 6. New and material evidence has not been received since the last denial of service connection for hypertensive vascular disease and the application to reopen the claim is denied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 7. The April 2009 rating decision denying the application to reopen service connection for diabetes is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 8. New and material evidence has not been received since the last denial of service connection for diabetes mellitus and the application to reopen the claim is denied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 9. The December 2012 rating decision denying the claim for service connection for a heart disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 10. New and material evidence has not been received since the last denial of service connection for a heart disability and the application to reopen the claim is denied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 11. The criteria for a rating in excess of 50 percent for right hand disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5220, 4.124a, DC 8516 (2017). 12. The claim for an effective date prior to January 22, 2001 for the assignment of an increased rating for right hand disability is a freestanding claim over which the Board has no jurisdiction. 38 U.S.C. §§ 5110, 7104(a) (2012); 38 C.F.R. §§ 3.155, 3.400, 20.1100 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1951 to October 1956. This matter comes to the Board of Veterans’ Appeals (Board) from the September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The medical evidence of record suggests that the Veteran may be unable to obtain or maintain substantially gainful employment. In light of the Court’s holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on appeal. Additionally, the Board notes that the issue involving a rating in excess of 50 percent for generalized anxiety disorder is currently being developed at the RO at the post-notice of disagreement stage and the RO has not yet issued a statement of the case regarding this claim. The Board acknowledges that ordinarily those claims should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the record indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address this claim at this time. New and Material -Laws and Analysis The Veteran was initially denied service connection for diabetes mellitus and hypertensive vascular disease in a November 2004 rating decision because there was no indication that these disorders were related to service. In an April 2009 rating decision, the RO denied reopening the claim for service connection for diabetes as new and material evidence had not been received. In December 2012, the RO denied the claim for a heart disability as there was no indication that the disorder was related to service. The Veteran was notified of these rating decisions, but did not appeal the decisions, nor was new and material evidence received within a year of the respective decisions. As such, the November 2004, April 2009, and December 2012 rating decisions became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the November 2004, April 2009, and December 2012 rating decisions were the last final disallowances, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran’s claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Board considered all the evidence received after the November 2004 (hypertensive vascular disease), April 2009 rating decision (diabetes), and December 2012 rating decision (heart disability); however, the Board finds that it is not both new and material as it pertains to the claims. Treatment records submitted after the November 2004 rating decision, although new, do not show any relationship between the Veteran’s hypertensive vascular disease, diabetes, or heart disorder and service or to a service-connected disability. VA examination reports and private medical opinions do not address the etiology of the Veteran’s diabetes, vascular disease, or heart disability. The reason for the November 2004, April 2009, and December 2012 denials was the absence of nexus between the Veteran’s diabetes, hypertensive vascular disease, and heart disabilities and service. Thus, the unestablished element for each of the claims is evidence of a nexus. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). For these reasons, the Board concludes that new and material evidence has not been received to reopen the claims for service connection for hypertensive vascular disease, diabetes, and a heart disability. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Tension Headaches The Veteran maintains that his headache disability is related to his service-connected anxiety disability and associated psychiatric symptoms, including depression. In support of his contention, the Veteran submitted an article titled, “Depression in headaches: chronification,” which indicated that population-based studies showed that patients with depression also had an increased rash for migraines. The Veteran also submitted a private medical opinion from Dr. Skaggs dated in August 2015. At that time, Dr. Skaggs confirmed a diagnosis of tension headaches and stated that it was at least as likely as not that the Veteran’s headaches “are permanently aggravated by his mental health condition.” It was noted that patients with anxiety and depression had an increased risk for migraines as pain and mood were regulated by the same part of the brain. Dr. Skaggs cited to the medical article noted above. The Board finds the opinion probative. The Board has reviewed the remaining evidence of record and finds that there are no other medical opinions that are contradictory to Dr. Skaggs’ findings. As such, the Board finds that the Veteran’s tension headaches are secondary to his service-connected psychiatric disability. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for tension headaches is warranted on a secondary basis. See 38 C.F.R. §§ 3.102, 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Depression In his March 2014 claim for VA compensation benefits, the Veteran filed a claim for service connection for “depression/anxiety.” In April 2010, September 2015, and March 2017 private and VA psychiatric examination reports, the Veteran was diagnosed with an anxiety disorder. Thereafter, the RO awarded service connection for generalized anxiety disorder and anxiety reaction and assigned a 50 percent rating, effective March 20, 2014. Nonetheless, there is no evidence showing a currently diagnosed depressive disorder that is separate and distinct from the Veteran’s service-connected psychiatric disability. The Board recognizes that in a September 2015 DBQ, y Dr. Galligan noted that the Veteran reported feelings of anxiety and depression. In a corresponding medical opinion, Dr. Galligan noted that the Veteran suffered from near-continuous depression and anxiety symptoms. However, Dr. Galligan also indicated that depression and/or anxiety were considered comorbid disorders “with overlap of symptom pattern which at times rendered it difficult to attribute specific symptoms to the specific diagnosis of depression or anxiety.” Thus even if depression was clearly diagnosed per diagnostic criteria as a separate disorder distinct from anxiety, the evidence shows that it is not possible to separate the symptomatology. Thus, in that case, the symptoms of depression would be attributed to the service-connected anxiety. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). As the Veteran’s depressed mood has been considered in the currently assigned rating for the service-connected anxiety disorder disability, the claim for service connection for depression is denied. The Board further notes that the Veteran’s depressive symptoms will continue to be considered in the adjudication of his claim for an increased rating for his anxiety disorder disability. See May 218 rating decision and pending Notice of Disagreement dated June 2018 (Veteran is challenging the rating assigned for anxiety disorder). Tinnitus The Veteran filed a claim for VA compensation for tinnitus in March 2014. However, upon review of all the evidence of record, lay and medical, the Board finds that the evidence does not support a current tinnitus disability. Tinnitus is a condition capable of lay observation. However, aside from the Veteran’s claim for compensation for tinnitus, he has not reported any tinnitus signs, symptoms, or diagnoses. The evidence includes an August 2014 VA audiology examination report, which indicates that during the evaluation, the Veteran himself did not report having tinnitus. The remaining evidence of record, to include VA treatment records, does not contain any diagnoses of tinnitus, let alone any indications or complaints of tinnitus. As such, the Veteran has not met the threshold to establishing a current “disability,” and the claim must be denied. Brammer, 3 Vet. App. 223, 225 (1992); see also Rabideau, 2 Vet. App. at 143-44. Because the preponderance of the evidence is against the claim for service connection for tinnitus, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Sleep Apnea The Veteran filed a claim for VA compensation for sleep apnea in March 2014. However, upon review of all the evidence of record, lay and medical, the Board finds that the evidence does not support a current disability. Service treatment records and post-service VA and private treatment records are absent for any diagnosis pertaining to sleep apnea. In April 2010, September 2015, and March 2017 private and VA psychiatric examination reports, the Veteran was noted to have some sleep disturbance which required medication. In a September 2015 medical opinion, Dr. Galligan noted that the Veteran suffered from chronic sleep impairment, insomnia, and broken sleep. The remaining evidence of record does not show any currently diagnosed sleep apnea disability that is separate and distinct from the sleep impairment associated with the Veteran’s service-connected psychiatric disability. The Board notes that sleep apnea is defined as “transient periods of cessation of breathing during sleep.” Dorland’s Illustrated Medical Dictionary, 32nd Ed. (2012). Although the Board acknowledges that the Veteran has competently reported sleep difficulty, sleep apnea involves distinct symptoms such as gasping and daytime fatigue which are separate from the more generic sleep problems associated with psychiatric disability. Moreover, sleep apnea is diagnosed by a sleep study and not by lay observation alone. As the evidence does not show a currently-diagnosed disorder, the claim for service connection for sleep apnea is denied. As such, the Veteran has not met the threshold to establishing a current “disability,” and the claim must be denied. Brammer, 3 Vet. App. 223, 225 (1992); see also Rabideau, 2 Vet. App. at 143-44. Because the preponderance of the evidence is against the claim for service connection for sleep apnea, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Right Hand Disability Rating—Laws and Analysis Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). V A has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical evidence shows that the Veteran is right-handed. His right-hand disability is currently rated under Diagnostic Code 8516-5220 based on ulnar nerve disability, which has resulted in favorable ankylosis of his fingers. See August 2014 VA hand and peripheral nerve examination reports. Diagnostic Code 5220 provides that favorable ankylosis of five digits of one hand is rated as 50 percent for the major hand. 38 C.F.R. § 4.71a, Diagnostic Code 5220. Notably, the Veteran is in receipt of the highest rating available under Diagnostic Code 5220; accordingly, a higher rating is not warranted. Moreover, an evaluation as amputation is also not required as the Veteran has been found to have favorable ankylosis of his fingers. Compare 38 C.F.R. § 4.71a, Diagnostic Code 5216 (unfavorable ankylosis of the five digits under this code requires consideration of whether evaluation as amputation is warranted). Moreover, the Veteran’s disability, diagnosed as favorable ankylosis of all fingers of the right hand due to ulnar nerve paralysis, has also been considered under Diagnostic Code 8516 for paralysis of the ulnar nerve. Under Diagnostic Code 8516, complete paralysis of the ulnar nerve of the major upper extremity, which is rated 60 percent disabling, contemplates a “griffin claw” deformity due to flexor contraction of the right and little fingers, very marked atrophy in the dorsal interspaces and the thenar and hypothenar eminences, loss of extension of the right and little fingers, an inability to spread (or reverse) the fingers, an inability to adduct the thumb, and weakness of the flexion of the wrist. Disability ratings of 10 percent, 30 percent and 40 percent are assignable for incomplete paralysis of the ulnar nerve of the major upper extremity, which is mild, moderate, or severe in degree, respectively. Therefore, to receive a rating in excess of 50 percent for his right-hand disability, the evidence must show complete paralysis of the ulnar nerve. In this regard, January 2013 and August 2014 VA peripheral nerves examination reports specifically indicated that the Veteran had “moderate” incomplete paralysis of the radial, median, and ulnar nerves. Diagnostic Codes 8514 (radial nerve), Diagnostic Code 8515 (median nerve), and Diagnostic Code 8516 (ulnar nerve) provide 30 percent ratings for moderate incomplete paralysis—ratings lower than the Veteran’s currently assigned 50 percent rating under Diagnostic Code 5220. See 38 C.F.R. § 4.124a, DCs 8514, 8515, 8516. The Board further finds that separate ratings under these criteria are not warranted; DC 5220 specifically contemplates limitation of motion of the digits of the hand in the criteria for a 50 percent rating (e. g., favorable ankylosis), and the characterization of the disability reflects that limitation of motion of the digits has been taken into account in the assignment of a 50 percent rating for moderate incomplete paralysis of the nerves resulting in favorable ankylosis of the hand. Considering these symptoms under DCs 8514 and 8515 as a separate rating would be considered pyramiding. 38 C.F.R. § 4.14. For these reasons, and because the Veteran has not been found to have unfavorable ankylosis of the fingers of the right hand or complete paralysis of the radial, median, or ulnar nerves, a rating in excess of 50 percent is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Earlier Effective Date Claim for Increased Rating The Veteran believes that an effective date earlier than January 22, 2001, is warranted for the increased rating for the service-connected right hand disability, which was increased from 40 to 50 percent. See Veteran’s Notice of Disagreement dated December 2014. Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(1)(ii). In March 2001, the RO assigned a 50 percent rating for the Veteran’s right-hand disability, effective January 22, 2001, the date of his claim for an increased rating. The Veteran was notified of this rating decision, but did not appeal the decision. As such, the March 2001 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Nevertheless, a rating decision is subject to revision on the grounds of clear and unmistakable error (CUE). If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C. § 5109A (a). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or whether the statutory or regulatory provisions extant at that time were incorrectly applied. Second, the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made.” Third, a determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). In the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), the veteran sought earlier effective dates for various benefits, by attempting to overcome final unappealed rating determinations dated years earlier. Rudd v. Nicholson, 20 Vet. App. 296, 297-98 (2006). The Court held that a final decision of the Secretary was subject to revision only on the grounds of clear and unmistakable error, or upon the presentation of new and material evidence to reopen. Id. at 299. However, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, only a request for revision based on CUE could result in the assignment of an earlier effective date for the appellant’s awards. Id. The Court found there was no proper claim and dismissed the case. Id. Based upon the evidence of record, the Board finds entitlement to an effective date earlier than January 22, 2001, for the assignment of the increased rating for the right-hand disability is not warranted. The evidence shows notice of the March 2001 rating decision was mailed to the Veteran at his address of record. The Veteran is considered to have been adequately notified and there is no evidence of a timely notice of disagreement. There is also no motion for revision of the March 2001 rating decision due to clear and unmistakable error. Applying the holding in Rudd to the facts of this case, the Board finds the present claim for an effective date earlier than January 22, 2001, for an increased rating for the right-hand disability is not proper; rather, the request for an earlier effective date is a free-standing claim that attempts to overcome the finality of the March 2001 rating decision. As a result, the Veteran’s appeal must be dismissed. For the foregoing reasons, the record does not provide a basis for the assignment of an effective date earlier than January 22, 2001, for the increased rating for the right-hand disability. The Court has held that in cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The Veteran also seeks entitlement to a TDIU based on his service-connected disabilities. As the TDIU claim is inextricably intertwined with the Board’s grant of service connection for headaches awarded in this decision and the pending assignment of its corresponding rating by the RO, consideration of the TDIU must be deferred pending implementation of the award granted herein. The matters are REMANDED for the following actions: 1. Implement the Board’s decision herein granting service connection for tension headaches, including the assignment of a disability rating and effective date. The Veteran and his representative should be properly notified thereof and of his appellate rights. (Continued on the next page)   2. Then, readjudicate the Veteran’s TDIU claim based on the entirety of the evidence. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel