Citation Nr: A25057167 Decision Date: 07/02/25 Archive Date: 07/02/25 DOCKET NO. 240510-438916 DATE: July 2, 2025 ORDER Entitlement to an effective date earlier than February 9, 2018, for the grant of a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT 1. A May 2020 rating decision granted TDIU and assigned an effective date of February 9, 2018. 2. The Veteran and his representative were notified of the May 2020 rating decision on June 8, 2020. 3. The Veteran responded to the May 2020 rating decision with a November 2020 Supplemental Claim, 4. In a December 2020 letter from his representative, the Veteran requested that his supplemental claim be changed to an appeal. However, a standardized Notice of Disagreement (VA Form 10182) was not received to initiate an appeal. 5. The Veteran did not appeal the May 2020 rating decision; no new and relevant evidence was received within the applicable appeal period, nor has he asserted clear and unmistakable error (CUE) in that decision. CONCLUSION OF LAW The Veteran's freestanding claim seeking an effective date earlier than February 9, 2018, for the award of TDIU lacks legal merit and is dismissed. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2013 to July 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 Agency of Original Jurisdiction (AOJ) decision on appeal. 38?C.F.R. §?20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§?20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As a final matter, the Board notes that the Veteran's May 2022 supplemental claim, to reopen his claim of earlier effective date for TDIU, included a claim of CUE. The AOJ did not adjudicate this issue. Therefore, as discussed in more detail below, the Board cannot adjudicate the claim of CUE. The Veteran may resubmit the claim to the AOJ or notify the AOJ that the issue is still pending. The Veteran contends that he is entitled to an earlier effective date of July 21, 2017. See May 2024 Statement in Support of Claim. The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Under 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. § 5110(a), (b)(2). The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise, the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App at 126. Accordingly, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. Rudd, 20 Vet. App. 296, 299-300. Thus, there is no valid freestanding claim for an earlier effective date. If a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. Id. The Veteran submitted a formal application for TDIU in January 2019. In a May 2020 rating decision, the Veteran was granted TDIU effective February 9, 2018, the date the RO received an initial claim for service connection for depression, which was construed as an increased rating claim for his service-connected psychiatric disabilities. In November 2020, the Veteran submitted a supplemental claim asserting that he is entitled to an earlier effective date of June 21, 2017, for the award of TDIU. In a December 2020 Correspondence, the RO informed the Veteran of the review options available and the deadline for submitting those options. Subsequently, the Veteran's representative submitted a letter dated January 2021 requesting that his supplemental claim be changed to an appeal. However, a standardized Notice of Disagreement form (VA Form 10182) was not received to initiate an appeal. See 38 C.F.R. §§ 20.201, 20.202. The current claim on appeal was filed in May 2022, well over a year following the unappealed May 2020 rating decision. This constitutes a "freestanding" earlier effective date claim, as no effective date was assigned in the April 2024 rating decision on appeal. Further, the Veteran has not made any specific allegations of CUE in the May 2020 decision that assigned the effective date, rendering the May 2020 rating decision final. The Board is bound by the laws and regulations of VA regarding the finality of prior decisions. 38 U.S.C. §§ 7104, 7105. The Board further recognizes that the Veteran's representative has argued for an earlier effective date based on CUE in the May 2022 supplemental claim. Specifically, he asserts that "As required by 38 C.F.R. 21.420(f)(1)(a), the veteran is required to receive written notification from VA for a proposed adverse action that could reduce, deny, or terminate benefit or services, including a discontinuance of a case." He also added that the dismissal of the November 17, 2020, appeal is a clear error. See August 2022 Representative Arguments. However, the issue is not before the Board at this time. A motion seeking revision on the basis of CUE is completely separate from entitlement to an earlier effective date and must be adjudicated by the RO in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326 (2006). An earlier effective date claim, however, is not intertwined with CUE, so the Veteran's claim should not be remanded merely because CUE has not been adjudicated first. See Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that a CUE motion and a claim seeking an earlier effective date are not the same or inextricably intertwined, because while the effective date element flows directly from the award of service connection, a CUE motion may be brought at any time and is premised upon an error in a prior final RO adjudication). An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). As such, the Board may only address arguments for an earlier effective date not based on CUE. Accordingly, the Board has no alternative but to dismiss this issue on appeal for failure to present a valid claim for an earlier effective date, without prejudice to the Veteran's filing a CUE claim. Sabonis v. Brown, 6 Vet. App. 426 (1994); Rudd, supra. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rivera Pagan, Cristina A. 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.