Citation Nr: 18147763 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-25 931 DATE: November 6, 2018 ORDER The appeal for an effective date earlier than August 24, 2011 for the grant of service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma is denied. FINDINGS OF FACT 1. Service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma was granted, effective from August 24, 2011, in a February 2012 rating decision. The Veteran submitted a timely notice of disagreement with the assigned effective date, and a statement of the case was issued in January 2014. The Veteran did not timely perfect his appeal; consequently, the February 2012 rating decision became final. 2. The Veteran submitted a claim for entitlement to an earlier effective date for the grant of service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma in December 2014. 3. The Veteran’s statements submitted since the February 2012 rating decision were not sufficient to properly raise a motion for clear and unmistakable error (CUE) in the February 2012 rating decision. CONCLUSIONS OF LAW 1. The February 2012 rating decision is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The December 2014 request is an attempted freestanding claim for entitlement to an effective date earlier than August 24, 2011 for the grant of service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma, and does not constitute a claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. A proper motion for CUE in the February 2012 rating decision has not been raised. 38 U.S.C. § 20.1404 (2012); 38 C.F.R. § 3.105 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1969. He received the National Defense Service Medal, Expert Marksmanship Badge, and Armed Forces Expeditionary Medal. Earlier Effective Date for Grant of Service Connection for Chronic Lymphocytic Leukemia with Non-Hodgkin’s Lymphoma In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2)(i) (2018). The U.S. Court of Appeals for Veterans Claims (Court) has held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court explained that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE and that any other result would vitiate the rule of finality. Rudd, 20 Vet. App. at 296. In other words, there are no freestanding claims for an earlier effective date. The Veteran must timely appeal the rating decision or Board decision that assigned the effective date in question. If an untimely freestanding claim for an earlier effective is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of the recognized statutory exceptions to finality. See DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). In the present case, the Veteran contends that an effective date earlier than August 24, 2011 is warranted for the grant of service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma because he was diagnosed with the condition in 2005. Service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma was granted, effective from August 24, 2011, in a February 2012 rating decision. The Veteran submitted a timely notice of disagreement with the assigned effective date, and a statement of the case was issued in January 2014. The Veteran did not timely perfect his appeal; consequently, the February 2012 rating decision became final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. In December 2014, the Veteran filed a claim for entitlement to an effective date earlier than August 24, 2011 for the grant of service connection for his disability. At that time, there was no pending claim or non-final decision. In light of the Court’s holding in Rudd, the Board finds the exception to the rule of finality, to include revision of a final decision on the basis of CUE, is not applicable in this case. See 38 C.F.R. § 3.105. In his notice of disagreement and substantive appeal, the Veteran argued that he should be granted an earlier effective date because he was first diagnosed with leukemia in 2005 and he was never notified by VA or the U.S. Army of herbicide exposure during his active duty service. See April 2015 NOD, pp. 1-2; June 2016 Form 9, p. 1. The Board finds that the Veteran’s statements were not sufficient to properly raise a motion for CUE in the February 2012 rating decision. CUE claims must be pled with specificity and must specifically identify the alleged error. Andre v. West, 14 Vet. App. 7, 10 (2000), aff’d sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). Because the Veteran has not raised a claim of CUE, the Veteran’s claim on appeal is an impermissible freestanding claim for an earlier effective date. See Rudd, 20 Vet. App. 296. As such, there is no legal basis on which the Board could grant the benefit sought. Therefore, the claim for an effective date earlier than August 24, 2011 for the grant of service connection for chronic lymphocytic leukemia with non-Hodgkin’s lymphoma is denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel