Citation Nr: 21071321 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-45 908A DATE: November 30, 2021 ORDER The appeal for an effective date earlier than June 23, 2014 for the grant of service connection for the cause of the Veteran's death is dismissed. FINDING OF FACT 1. The Veteran died in April 2010. 2. In a July 2014 decision, the appellant was granted entitlement to service connection for the cause of the Veteran's death effective June 23, 2014, the date her complete claim for VA survivor's benefits was received. 3. The appellant did not disagree with the effective date assigned in the July 2014 decision within one year of its issuance. 4. The appellant's July 2017 claim constitutes a freestanding claim for an earlier effective date for the grant of service connection for the cause of the Veteran's death, which is barred as a matter of law. CONCLUSION OF LAW The claim for entitlement to an effective date earlier than June 23, 2014, for the grant of service connection for the cause of the Veteran's death is dismissed. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 3.156, 20.302, 20.1103 (2014); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from May 1960 to September 1966 and December 1967 to July 1986. He died in April 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) July 2017 decision. Entitlement to an effective date earlier than June 23, 2014 for the grant of service connection for the cause of the Veteran's death Service connection for the cause of the Veteran's death was granted in an August 2014 rating decision. In July 2017, the appellant (via her representative) submitted a VA Form 21-4138, Statement in Support of Claim, in which she asserted that an informal claim for "survivor's benefits" was submitted in July 2010 and, therefore, expressed disagreement with the effective date of July 2014 for the grant of service connection for the cause of the Veteran's death (the Board notes that the date of July 1, 2014 was the date that payment of benefits began, not the effective date of the award of benefits as that is based upon when the appellant's claim was received, which was June 23, 2014). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a decision by the agency of original jurisdiction to initiate an appeal by filing a Notice of Disagreement with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 20.302; 20.1103. Furthermore, if new and material evidence was received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156 (a). See Young, 22 Vet. App. at 468. There is nothing in the claims file from the appellant or her representative filed within one year of the issuance of the August 2014 rating decision that may constitute a notice of disagreement or new and material evidence. See 38 C.F.R. §§ 3.156, 20.302(a). Moreover, the appellant's correspondence received in July 2017 cannot be considered a timely notice of disagreement with the August 2014 rating decision because it was received three years after that decision was issued. §§ 20.302(a). Thus, the August 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Rather, the Board finds that the appellant's July 2017 correspondence raised a freestanding earlier effective date claim for the grant of service connection for the cause of the Veteran's death. There can be no freestanding claims for earlier effective dates absent a claim of clear and unmistakable error. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). Considering Rudd, the Board has no alternative but to dismiss the appeal as to this issue, as there is no legal right to the benefit sought. The appellant has not alleged clear and unmistakable error in the August 2014 rating decision's assignment of June 23, 2014 as the effective date. Rather, she merely argues that there was an error in the VA's duty to assist (i.e., failure to provide claims form upon request). A violation of the duty to assist cannot constitute clear and unmistakable error. See Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). The claim for an earlier effective date is, therefore, dismissed. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.