Citation Nr: 18154696 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 11-21 057 DATE: December 3, 2018 ORDER New and material evidence not having been received, the petition to reopen the claim for entitlement to service connection for hypertension is denied. New and material evidence not having been received, the petition to reopen the claim for entitlement to service connection for prostate cancer is denied. New and material evidence not having been received, the petition to reopen the claim for entitlement to service connection for diabetes mellitus, type II is denied. New and material evidence having been received, the claim for entitlement to service connection for schizophrenia is reopened. New and material evidence having been received, the claim for entitlement to service connection for a headache disorder is reopened. Entitlement to service connection for schizophrenia is granted. Entitlement to service connection for a headache disability is granted. Entitlement to service connection for high cholesterol is denied. Entitlement to a rating greater than 40 percent for residuals of pyeloplasty for uretero-pelvic junction obstruction, right is denied. Entitlement to an earlier effective date for residuals of pyeloplasty for uretero-pelvic junction obstruction, right is denied. FINDINGS OF FACT 1. The December 1989 rating decision that denied service connection for hypertension was not appealed. 2. A September 2013 rating decision that denied reopening the claim for service connection for hypertension was not appealed; new and material evidence was not received within one-year of the notice of the September 2013 rating decision. 3. The September 2013 rating decision that denied service connection for prostate cancer and diabetes mellitus, type II was not appealed, and new and material evidence was not received within one-year of the notice of that rating decision. 4. Evidence received since the September 2013 rating decision concerning hypertension and prostate cancer is cumulative and redundant, and does not relate to an unestablished fact necessary to substantiate the underlying claim for service connection. 5. Evidence received since the September 2013 rating decision does not relate to the Veteran’s diabetes mellitus, type II; therefore, it does not relate to an unestablished fact necessary to substantiate the underlying claim for service connection or raise a reasonable possibility of substantiating the claim. 6. The December 1989 rating decision that denied service connection for a headache disorder was not appealed. 7. An August 2008 rating decision denied reopening the claim for service connection for a headache disorder and new and material evidence was not received within one-year of the notice of that rating decision. 8. An April 1996 rating decision denied service connection for schizophrenia and new and material evidence was not received within one-year of the notice of that rating decision. 9. New and material evidence has been received since the April 1996 and August 2008 rating decisions to reopen the claims, and raises a reasonable possibility of substantiating the underlying claims for service connection for a headache disorder and schizophrenia. 10. The Veteran’s headache disability and schizophrenia have been shown to be caused or aggravated by a service-connected disability. 11. High cholesterol is a laboratory finding and does not constitute a chronic disability for which VA disability benefits may be awarded. 12. Throughout the appeal, the Veteran’s residuals of pyeloplasty for uretero-pelvic junction obstruction, right has been manifested by some frequency in voiding, but the use of an appliance or the need to change absorbent materials more than four times per day, or renal dysfunction is not shown. 13. A higher rating for residuals of pyeloplasty for uretero-pelvic junction obstruction, right has not been granted so an earlier effective date for a higher rating is moot, and the time period for appealing the effective date for the current rating has expired. CONCLUSIONS OF LAW 1. The September 2013 rating decision, which denied reopening the claim for service connection for hypertension, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 2. Evidence received since the September 2013 rating decision is not new and material and the claim for service connection for hypertension is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The September 2013 rating decision, which denied entitlement to service connection for prostate cancer, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 4. Evidence received since the September 2013 rating decision is not new and material and the claim for service connection for prostate cancer is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The September 2013 rating decision, which denied entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 6. Evidence received since the September 2013 rating decision is not new and material and the claim for service connection for diabetes mellitus, type II is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. The August 2008 rating decision, which denied reopening the claim for service connection for a headache disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 8. Evidence received since the August 2008 rating decision is new and material, and the claim for service connection for a headache disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 9. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a headache disorder are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 10. The April 1996 rating decision, which denied service connection for schizophrenia, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 11. Evidence received since the April 1996 rating decision is new and material, and the claim for service connection for schizophrenia is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 12. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for schizophrenia are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 13. The criteria for entitlement to service connection for high cholesterol are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2018). 14. The criteria for entitlement to a rating greater than 40 percent for residuals of pyeloplasty for uretero-pelvic junction obstruction, right have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7512 (2018). 15. An earlier effective date for the 40 percent rating for residuals of pyeloplasty for uretero-pelvic junction obstruction, right is denied as a matter of law. 38 U.S.C. §§ 5110, 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1973 to June 1982 and had an additional four years and eight months of unverified active duty service prior to this period. This appeal to the Board of Veterans’ Appeals (Board) is from November 2009 and June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2011 Form 9 shows the Veteran wanted a video conference hearing; however, a subsequent Form 9 in August 2016 shows he no longer wanted a hearing, so the request has been withdrawn. Additional evidence added to the record after the most recent adjudications of the claims, is cumulative or redundant of evidence already considered, or is not pertinent to the claims. Pertinent evidence submitted by the Veteran’s attorney included a waiver. Thus, initial RO consideration of the evidence is not required. The Board obtained VHA opinions in March and November 2018. In general, a claimant is entitled to respond to a VHA opinion within 60 days of being furnished with a copy of the opinion. See 38 C.F.R. § 20.903(a). Although 60-days has not passed since the most recent opinion was obtained and there is no evidence he or his attorney were provided a copy yet, this is a harmless error and the Veteran is not prejudiced since the Board is granting the claims addressed in the opinion. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hypertension. The RO initially denied the Veteran’s claim for service connection for hypertension in a December 1989 rating decision. Although the RO noted that outpatient treatment records showed he had a diagnosis of hypertension since 1988, the claim was denied on the basis that service treatment records were negative for the treatment of hypertension, high blood pressure, or heart disease. The Board notes that the Veteran’s April 1972 enlistment examination noted high blood pressure but after repeat testing over two days his blood pressure was within normal limits and he was found fit for duty. He underwent three days of blood pressure testing in March 1973 and those findings were also within normal limits. See STR – Medical – Photocopy. The Veteran did not submit a notice of disagreement with the December 1989 rating decision. No new and material evidence was received by VA within one year of the issuance of this rating decision. As such, the December 1989 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). Over the years, the Veteran made attempt to reopen the claim for service connection for hypertension. Each time, even when the claim had been reopened, the RO ultimately denied these claims in August 2002, February 2007, August 2008 and September 2013 rating decisions. By the time the most recent final denial had been made in September 2013, additional evidence had been added to the record that contained evidence of ongoing hypertension. See March 1995 VA 10-10 Forms, July 2006 Medical Treatment Record – Non-Government Facility, and April 2012 CAPRI records. There was also evidence that his hypertension was related to the service-connected renal pathology; however, VA opinions in January 2004 and October 2006 were that his hypertension was not related to a kidney disorder or renal dysfunction. See January 2004 and October 2006 VA Examinations. Thus, the claim remained denied. Since the Veteran did not file a notice of disagreement (NOD), and no new and material evidence was received within one year of the issuance of the most recent final denial in September 2013, this and all previous rating decisions concerning this issue are final. Id. Evidence added to the record after the September 2013 rating decision includes a June 2014 VA examination. See June 2014 C&P Exam. Although the examination includes a new opinion, it is cumulative evidence since the clinician also opined that the Veteran’s hypertension was not due to renal dysfunction or a kidney disorder. Accordingly, the opinion is not material evidence and since it is unfavorable it does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for hypertension cannot be reopened. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for prostate cancer. The September 2013 rating decision denied service connection for prostate cancer based on a finding that there was no evidence of the Veteran’s cancer in service or in the first post service year. This decision considered service treatment records that contain no evidence of a prostate disorder and post service treatment records that show prostate cancer was not diagnosed until June 2011. See STR – Medical – Photocopy and April 2012 CAPRI records. One of the earliest indications of a problem was in April 2009 when his prostate was mildly enlarged and he had an elevated PSA. See May 2009 Medical Treatment Record – Government Facility. Since the Veteran did not file a NOD, and no new and material evidence was received within one year of the issuance of the September 2013 rating decision, the denial of the claim for prostate cancer is final. Evidence added to the record after the September 2013 rating decision includes cumulative evidence his attorney submitted in October 2018. Medical evidence dated that same month notes the Veteran was initially diagnosed with prostate cancer in 2011 and that it was treated with radiation and hormone therapy that was completed in January 2012. A recent prostate biopsy showed evidence of prostate cancer. See October 2018 Motion ot Advance on Docket. While the evidence the attorney submitted is new, it is not material to the claim because it does not relate to an unestablished fact necessary to substantiate the claim. In this regard, the diagnosis of prostate cancer had already been established when the claim was denied in September 2013, therefore, the evidence is cumulative and does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claim for service connection for prostate cancer cannot be reopened. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for diabetes mellitus, type II. A September 2013 rating decision denied service connection for diabetes mellitus, type II based on a finding that there was no evidence of diabetes mellitus during service or in the first post service year. He was also not shown to be entitled to any presumptions. This decision considered service treatment records that contained no evidence of diabetes mellitus, records showing no evidence of Vietnam service, and post service treatment records that repeatedly showed glucose levels were within normal limits. He was not shown to have developed diabetes mellitus until many years after service. See February 1996, March 2003, and July 2010 Medical Treatment Record – Government Facility, April 2012 CAPRI records, November 2012 Request for Information, and July 2013 Military Personnel records. Since the Veteran did not file a NOD, and no new and material evidence was received within one year of the issuance of the September 2013 rating decision, the denial of the claim for diabetes mellitus is final. Evidence added to the record after September 2013 does not contain any evidence pertinent to diabetes mellitus; therefore, new and material evidence has not been received to reopen the claim. 4. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for schizophrenia. The April 1996 rating decision denied service connection for a psychiatric disorder on the basis that there was no evidence of psychosis in service or within the presumptive period following service. The Veteran did not submit a notice of disagreement with the April 1996 rating decision. No new and material evidence was received by VA within one year of the issuance of this rating decision. As such, the April 1996 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence has been received since the April 1996 rating decision. A May 2017 opinion from Dr. H. H-G. was that the schizophrenia more likely than not began during service and was aggravated by his pyeloplasty for uretero-pelvic junction obstruction with history of post-surgical pain. See August 2017 Medical Treatment Record – Government Facility. As the evidence is new and material, and raises a reasonable possibility of substantiating the claim, the claim is reopened. 5. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a headache disorder. A December 1989 rating decision denied service connection for a headache disorder on the basis that there was no evidence of head trauma or treatment for headaches in his service treatment records. The Veteran did not submit a notice of disagreement with the December 1989 rating decision. No new and material evidence was received by VA within one year of the issuance of this rating decision. As such, the December 1989 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). The Veteran attempted to reopen his claim, but it was denied in an August 2008 rating decision on the basis that new and material evidence had not been received. The decision was not appealed and since no new and material evidence was received within one year of the notice of this decision, the August 2008 rating decision became final. Id. New and material evidence has been received since the August 2008 rating decision. This evidence includes a July 2017 opinion from Dr. M.B. that links the Veteran’s headaches to his psychiatric disability. See May 2018 Medical Treatment Record – Government Facility. Since the Board is granting service connection for schizophrenia, this medical opinion is new and material, and raises a reasonable possibility of substantiating the claim. Thus, the claim is reopened. Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the claimant is afforded the benefit of the doubt. 6. Entitlement to service connection for high cholesterol. The Veteran contends in his October 2013 claim that his high cholesterol is related to service. His service treatment records contain no evidence of high cholesterol. See STR – Medical. Post-service treatment records show laboratory tests revealed high cholesterol in August 1995 and April 1996, and indicate he had hypercholesterolemia and hyperlipidemia in September 2007. See March 2003 Medical Treatment Record – Government Facility and July 2006 Medical Treatment Records – Furnished by SSA. Notably, high cholesterol is also referred to as hypercholesterolemia and is “excessive cholesterol in the blood.” Dorland’s Illustrated Medical Dictionary 887 (32nd ed. 2012). Thus, it is a laboratory finding and not a disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). The term “disability” as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there is no evidence of record suggesting that in and of itself, the Veteran’s high cholesterol causes any functional impairment of earning capacity. Furthermore, the Veteran has not asserted, and the record does not suggest, that he has any diagnosed disability, such as heart disease, due to elevated cholesterol. Entitlement to service connection is limited 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 for service-connection.” Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Because the Veteran’s high cholesterol is a laboratory finding and has not been shown to be a disability productive of functional impairment in earning capacity, service connection for high cholesterol cannot be granted. 7. Entitlement to service connection for schizophrenia. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board finds that there is sufficient evidence to grant the claim for service connection on a secondary basis. The Veteran has a diagnosis of schizophrenia and service connection has been established for residuals of pyeloplasty for uretero-pelvic junction obstruction, right. A March 2018 VHA opinion is unfavorable to the claim. The psychiatrist stated that Dr. H.H-G.’s May 2017 opinion linking schizophrenia to the service-connected residuals of pyeloplasty for uretero-pelvic junction obstruction was not supported by the record and explained the basis for this conclusion. He did not, however, offer an opinion on secondary service connection. In November 2018, he clarified his earlier statement by opining that the Veteran’s schizophrenia was less likely than not caused by the residuals of pyeloplasty. However, he did opine that it is more likely than not that the Veteran’s schizophrenia was aggravated by the pyeloplasty and its residuals. Exacerbations of psychosis are common and predictable with physical and social stressors. See November 2018 Other. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection is warranted on a secondary basis. 8. Entitlement to service connection for a headache disorder. The Veteran has been diagnosed with having a headache disorder. See August 2017 Medical Treatment Record – Government Facility. Since the Board has also granted service connection for schizophrenia the only remaining question is whether there is a relationship between the two. The evidence of record indicates the Veteran’s headaches have more than one origin. While some treatment records suggest that the Veteran has headaches related to his hypertension, Dr. M.B. has provided a nexus opinion that links the Veteran’s headaches to his schizophrenia. See July 2006 Medical Treatment Record – Non-Government Facility, October 2006 VA Examination, and August 2017 Medical Treatment Record – Government Facility. Dr. M.B.’s opinion that the Veteran’s headaches were as likely as not caused by his psychiatric disorder is based on the examination, interview with the Veteran, review of the file, and medical research and included a rationale. See May 2018 Medical Treatment Record – Government Facility. There is also a May 2018 opinion from Dr. P.R. who reviewed the Veteran’s records and opined that the headache disorder is as likely as not due to the service-connected pyeloplasty for uretero-pelvica junction obstruction, right with history of post-surgical pain. She noted that medical research shows that pain and mood are closely related and there is also a relationship between mood and psychosocial stress. See May 2018 Medical Treatment Record – Government Facility. These opinions are probative and adequately supported by rationale. Thus, reasonable doubt is resolved in the Veteran’s favor and his headaches are found to be secondary to a service-connected disability. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 9. Entitlement to a rating greater than 40 percent for pyeloplasty for uretero-pelvic junction obstruction, right. Service connection was established in a January 1983 rating decision and a 10 percent rating was assigned. An August 2005 Board decision increased the rating to 40 percent, and an October 2005 rating decision awarded an effective date of November 3, 1997. This disability is rated by analogy under Diagnostic Code 7512, which directs to rate as voiding dysfunction. 38 C.F.R. §§ 4.115a, 4.115b. The Veteran filed his current claim for an increase in October 2013. A January 2012 VA treatment record shows the Veteran reported urinating more than usual, but that this had not changed. In April 2012, he reported having less urinary frequency; he had nocturia two to three times a night (down from four to five times a night), no urgency, no incomplete voiding sensation, and no hematuria. See January 2012 CAPRI records. On June 2014 VA examination, the clinician noted that the Veteran did not have renal dysfunction associated with the service-connected disability. Under the section for urolithiasis, he was noted to have had a history of kidney calculi, but he has not had treatment for recurrent kidney stones. He was also not experiencing any signs or symptoms such as attacks of colic. The Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections and no pertinent findings were noted. The examiner noted that the pain had resolved. The only abnormality found in laboratory tests was the presence of hyaline casts in the urinalysis. There was no indication that his disability required the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. See June 2014 C&P Exam. Based on the above, the criteria for a rating in excess of 40 percent have not been met. There is no indication that his disability required the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Moreover, renal dysfunction was not shown. Accordingly, the Board finds there is no basis to assign a higher rating under alternate applicable criteria at any time during the appeal. Earlier Effective Date 10. Entitlement an earlier effective date for pyeloplasty for uretero-pelvic junction obstruction, right. On a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that after a rating decision becomes final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). “Free-standing” earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Id. The Court therefore held that VA has no authority to adjudicate a “free-standing” earlier effective date claim in an attempt to overcome the finality of a prior decision. Id. at 299. After the June 2014 rating decision that denied a higher rating for pyeloplasty for uretero-pelvic junction obstruction, right, the Veteran filed a December 2014 notice of disagreement concerning both the effective date and the rating. However, since a higher rating was denied by the RO and the Board has also denied the claim in the decision above, an earlier effective date for a higher rating is moot. The current 40 percent rating has been in effect since an October 2005 rating decision effectuated the rating based on the August 2005 Board decision, and established an effective date of October 3, 1997. See October 2005 Rating Decision – Narrative and Codesheet. The time period for appealing the decision that established the 40 percent rating has expired. See Rudd, supra. Furthermore, since the Veteran has not alleged CUE, there is no basis upon which the claim may be allowed. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the law is dispositive. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst