Citation Nr: 1812697	
Decision Date: 03/01/18    Archive Date: 03/13/18

DOCKET NO.  14-33 384	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an effective date earlier than September 5, 2003 for the grant of service connection for chronic adjustment disorder.


REPRESENTATION

Appellant represented by:	Marine Corps League


WITNESSES AT HEARING ON APPEAL

The Veteran and his mother


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1988 to November 1989. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). 

In October 2017, the Veteran and his mother testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. 

During his Board hearing, the Veteran requested a 60 day extension to submit additional evidence. Such request was granted and has been implemented. 

Although a notice of disagreement (NOD) was filed to the February 2014 rating decision denying entitlement to special monthly compensation based on the need for aid and attendance and being housebound, a timely substantive appeal (VA Form 9) was not submitted. Accordingly, that issue is not before the Board.


FINDING OF FACT

Service connection for chronic adjustment disorder, effective September 5, 2003, was granted in a July 2004 rating decision. The Veteran was notified of that decision in correspondence issued that same month, but he did not appeal the effective date of the award and he does not assert that the effective date was clearly and unmistakably erroneous.


CONCLUSION OF LAW

The claim of entitlement to an effective date prior to September 5, 2003, for an award of service connection for chronic adjustment disorder is dismissed. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the outcome of this issue is determined solely as a matter of applicable law (rather than by facts that are in dispute or that could potentially result in a favorable decision with further development), VA's duties to notify and assist do not apply. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 23, 2004); see also 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).

In a July 2004 rating decision, the Veteran was granted entitlement to service connection for chronic adjustment disorder. He was notified of that decision in correspondence issued that same month. The Veteran submitted a NOD in September 2004 only for the evaluation assigned; he did not appeal the effective date of the award. He did not submit additional correspondence within one year of the decision indicating that he disagreed with the effective date of the award. As noted, the Board eventually decided the Veteran's appeal for a higher evaluation in June 2006; that decision was not appealed. Thus, the July 2004 rating decision became final, absent a finding of clear and unmistakable error (CUE).

In June 2011, the Veteran notified VA that he wished to submit a claim for an earlier effective date for the award of entitlement of service connection for chronic adjustment disorder. See June 2011 Report of General Information.

In light of the finality of the July 2004 rating decision, and in the absence of a claim that the July 2004 rating decision was clearly and unmistakably erroneous, the Veteran cannot obtain an effective date earlier than September 5, 2003. Legally, there cannot be a free-standing claim for an earlier effective date, and once an effective date has become final, a Veteran's only recourse is to have the final decision revised on the grounds of CUE. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this case, since the July 2004 rating decision became final, alteration can only occur by means of a motion for revision based on CUE. See 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017). No such motion has been filed, nor have any of the Veteran's written statements contained specific allegations of error in fact or law in the July 2004 rating decision, as required for a CUE motion. 38 C.F.R. § 3.105 (2017); see Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (stating that if a Veteran "wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is").

The proper disposition of a free-standing claim for an earlier effective date claim is dismissal. Rudd, 20 Vet. App. at 300. The Board is authorized to dismiss any appeal that fails to allege an error of fact or law. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.302. Accordingly, this appeal must be dismissed.

The Board thanks the Veteran for his honorable service and regrets a more favorable outcome could not be reached.


ORDER

The appeal of entitlement to an effective date prior to September 5, 2003 for an award of service connection for chronic adjustment disorder is dismissed.





____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs