Citation Nr: 21032062 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-32 645 DATE: May 25, 2021 ORDER Entitlement to an effective date prior to January 30, 2014 for the grant of service connection for a major depressive disorder (MDD) is denied. FINDING OF FACT The Veteran's claim for service connection for a major depressive disorder was received on January 30, 2014; and there was no pending claim, formal or informal, prior to that date. CONCLUSION OF LAW The criteria for an effective date earlier than January 30, 2014 for the grant of service connection for a major depressive disorder have not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1975 to April 1979 and from September 1979 to September 1995. In January 2020, the Board of Veterans' Appeals (Board) remanded this claim to the agency of original jurisdiction (AOJ) to accord the AOJ an opportunity to issue a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999). In June 2020, the AOJ issued a Supplemental Statement of the Case (SSOC) and returned this matter to the Board for appellate adjudication. The Board notes that the Veteran has not filed a substantive appeal perfecting an appeal of this earlier effective date claim. However, the cover letter to the June 2020 SSOC informed the Veteran that "a response at this time is optional." Accordingly, the Board will proceed with further appellate review of this appeal. In February 2020, the Veteran's attorney filed another motion to withdraw representation and, in so doing, stated that "factors made continuation of representation impossible, impractical, or unethical." However, the Board finds that the representative has not shown good cause for withdrawal of representation. Further, the attorney's first motion to withdraw representation was denied in the January 2020 Board Remand. As no additional cause has been shown, the attorney's current request to withdraw is denied. 38C.F.R. §19.1, 20.6. Earlier Effective Date Grant Of Service Connection For MDD The Veteran contends that service connection of a major depressive disorder (MDD) is warranted prior to January 30, 2014. The Board finds that an effective date prior to January 30, 2014 is not warranted, as that is the date the claim was received by VA. Under 38 U.S.C. § 5110(a), the effective date of an award based on an original claim or on a claim reopened after a final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. Under the relevant regulations, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Here, service connection for MDD was granted in an August 2017 rating decision, which assigned an effective date of January 30, 2014, the date the Veteran's claim was received. In this regard, the Board notes that an October 1995 application for compensation lists "alcohol problem" as among the Veteran's claims for service-connection. A June 1996 rating decision denied the claim. The Veteran did not appeal and no new and material evidence was received within one year of the rating decision. 38 C.F.R. § 3.156(b). The June 1996 rating decision is final. After the June 1996 denial, there is no claim prior to the January 30, 2014 application. Thus, the earliest date of a pending claim is January 30, 2014. To the extent that the Veteran now seeks to revisit a prior final decision, such claim is without merit and must be dismissed as a freestanding claim for an earlier effective date. Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). To hold otherwise would vitiate the rule of finality, which was expounded upon in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). As there are no pending claims prior to January 30, 2014, the only basis to grant the benefit sought on appeal is through a claim that a prior final decision was premised on Clear and Unmistakable Error (CUE). The Veteran has not explicitly raised such a claim and has not described such error as would constitute CUE. There is no other evidence of record indicating the Veteran filed a claim or that any claim was pending, formal or informal, for service connection of an acquired psychiatric disorder prior to January 30, 2014. 38 C.F.R. § 3.155, § 3.160(c). There is no factual or legal basis to assign an effective date before January 30, 2014 for the grant of service connection for MDD. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran has offered no evidence or argument that his claim was submitted prior to January 30, 2014. Significantly, the AOJ assigned the earliest effective date legally permitted in this case, which is the date that this claim was received. No earlier effective date is permitted by law. In summary, the relevant regulations require that the effective date of the award be the date of receipt of the claim (in this case, January 30, 2014) or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date has been appropriately assigned as January 30, 2014, the date of claim. The Veteran's claim for an earlier effective date is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.