Citation Nr: 21015448 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-33 945 DATE: March 17, 2021 ORDER Entitlement to an earlier effective date for the grant of service connection for major depressive disorder with unspecified substances other substance-related disorder (psychiatric disability) is dismissed. FINDING OF FACT The claim for an earlier effective date for the grant of service connection for a psychiatric disability constitutes a freestanding claim. CONCLUSION OF LAW An earlier effective date for the grant of service connection for a psychiatric disability is dismissed as a matter of law. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to April 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an April 2019 hearing. Initially, the Board notes that at the April 2019 Board hearing, the Veteran expressed frustration regarding the appeal of his dependency claim. In February 2018, the RO removed the Veteran’s son from his VA compensation award due to his receipt of Dependents Education Assistance. The Veteran disagreed with that determination, and elected review under the Decision Review Officer (DRO) review process. Following a July 2018 DRO hearing, the RO issued an August 2018 Statement of the Case determining that the removal of additional compensation for his son was proper. The Veteran did not file a timely appeal. Accordingly, the Board does not have jurisdiction of this issue. Entitlement to an earlier effective date for the grant service connection for a psychiatric disability The Veteran contends that the effective date for his service-connected psychiatric disability should be prior to July 8, 2009, the date of his claim. As noted above, the RO granted service connection in a February 2013 rating decision. A March 2013 notification letter informed the Veteran of the grant and explained that if he did not agree with the decision, he should appeal within one year of the date of the notification letter. The Veteran did not file an appeal within one year, and that rating decision became final. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran first attempted to appeal that decision in an August 2015 Notice of Disagreement (NOD), more than one year later. In a September 2015 statement, the Veteran asserted that he spoke with someone at the RO sometime around October 2013 regarding appealing the rating decision, and they told him that because his recent dependency claim was being processed, appealing would hold up that claim, so he should wait. The Veteran also asserted that the person told him this would not affect his right to appeal. He also stated that he did not receive the notification letter until September 2014 because it was sent to the wrong address. In a second September 2015 statement, the Veteran asserted that he could not file a timely appeal because he was having mental health issues that caused him to be in and out of the hospital. At a November 2015 DRO hearing, the Veteran contended that the effective date for the grant of his service-connected psychiatric disability should be the date he separated from service, as he was treated for depression at that time. He also again asserted that he could not file a timely appeal because he was incapacitated, and that although he had assigned someone power of attorney, she never sent the paperwork to him to appeal. During the hearing, the DRO attempted to explain how the effective date is determined as a matter of law, but the Veteran expressed frustration and confusion at this explanation. In July 2016 and April 2018 statements, the Veteran again asserted that the effective date for the grant of his service-connected psychiatric disability should be the date he separated from service, and that he was unable to file a timely appeal because of mental health issues. At a July 2018 DRO hearing for the separate claim for dependency, the Veteran attempted to discuss the present earlier effective date claim as a matter of clear and unmistakable error. The DRO informed him that they did not have jurisdiction over that claim and advised him that he would need to file that as a separate claim outside the VA appeals system. At the April 2019 Board hearing, the Veteran asserted that he was incapacitated in the hospital during the time that he was supposed to file a NOD to appeal the effective date of his service-connected psychiatric disability. He explained that he was released from incarceration in 2011, and when he returned to VA for psychiatric treatment, he was prescribed a medication different to the one that he had been prescribed since 1997. The Veteran and his wife explained that the change in medication caused him quite a bit of distress, he began to go in and out of the hospital, and he even tried to commit suicide. The Veteran also stated that during this time, the police came and took him to the hospital. He asserted that he does not remember that period of his life very well, and that stress generally causes him to black out. The Veteran also raised issues with VA not having his correct address at various times, including a period when an ex-wife was receiving his correspondence from VA, and not forwarding that material to him. Once there is a final decision in which the RO grants a benefit and assigns an effective date, a claimant who has not timely appealed that effective date cannot subsequently make a “freestanding” claim for an earlier effective date for that benefit after the expiration of the one-year period for appealing the assigned effective date. Rudd, 20 Vet. App. at 296 (holding that where there was a prior final decision of record that assigned an effective date, absent a contention of CUE or petition to reopen the previous decision, non-specific “freestanding” claim for an effective date would vitiate the rule of finality and should be dismissed). A final decision can only be overcome by a request for revision based on clear and unmistakable error (CUE) or by a request to reopen based upon new and material evidence. 38 C.F.R. § 3.105(a). Simply put, a rating decision becomes final when it is not appealed within one year of the date of the rating decision notification letter. Any attempts to appeal that final rating decision more than one year later are freestanding claims. VA and the Board does not have the legal authority to try to decide a freestanding claim. Here, because the Veteran appealed the effective date more than one year after the rating decision notification letter, it is a freestanding claim, and the Board does not have the authority to decide this claim. The Board is certainly sympathetic to the Veteran’s assertions. Between incarceration, substance abuse, divorce, a new marriage, mental health issues, returning to school, and issues with VA regarding debts and dependency claims, the Veteran has had a difficult decade, and is understandably upset over trying to resolve this effective date claim. Although the Board is sympathetic toward the Veteran and grateful for his service, the Board is bound and constrained by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. 38 U.S.C. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). “[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Should the Veteran still wish to file a motion seeking revision of any prior final rating decision, including the February 2013 rating decision, he should file the appropriate form(s) for a CUE motion as prescribed by the Secretary. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.