Citation Nr: 0828378	
Decision Date: 08/21/08    Archive Date: 09/02/08

DOCKET NO.  06-33 573	)	DATE
	)
	)



On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California




THE ISSUE

Entitlement to an effective date prior to January 25, 1999 
for the grant of service connection for post-traumatic stress 
disorder (PTSD).





ATTORNEY FOR THE BOARD

M. Sorisio, Associate Counsel




INTRODUCTION

The appellant is a veteran who served on active duty from 
October 1980 to November 1986.  This matter is before the 
Board of Veterans' Appeals (Board) on appeal from a January 
2005 rating decision of the San Diego, California Department 
of Veterans Affairs (VA) Regional Office (RO) that denied an 
effective date prior to January 25, 1999 for the grant of 
service connection for PTSD.  The veteran’s claims file is 
now in the jurisdiction of the Oakland, California RO.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if further action on her part is required.


REMAND

In a June 2008 submission to the Board, the veteran alleged 
that the RO committed clear and unmistakable error (CUE) in 
an August 1988 administrative decision that found that she 
had a dishonorable period of service from October 13, 1984 to 
November 21, 1986.  Specifically, she argued that the finding 
that she had a dishonorable period of service and that a 
failure to notify her of the August 1988 decision were CUE.  
A review of the record indicates that she has previously 
raised similar arguments; however, the RO has not adequately 
addressed the veteran's allegations of CUE in the August 1988 
administrative decision.  While the veteran indicated that 
she was waiving initial review of the CUE claim by the RO, 
the veteran is unable to waive such review as the Board does 
not currently have jurisdiction over a CUE claim.  38 C.F.R. 
§§ 20.101, 20.200.

Notably, the veteran's effective date claim is a 
"freestanding" claim; she did not appeal the November 1999 
rating decision that assigned the effective date of January 
25, 1999 and that decision became final.  38 U.S.C.A. § 7105; 
38 C.F.R. § 3.104(a).  Where a decision assigning an 
effective date is final, only a request for revision based on 
CUE can result in the assignment of an earlier effective 
date.  See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 
(2006).  Hence, the allegations of CUE are inextricably 
intertwined with the earlier effective date issue on appeal, 
and both issues must be adequately addressed prior to final 
adjudication of the veteran's claim for an effective date 
prior to January 25, 1999 for the grant of service connection 
for PTSD.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following:

1. The RO should adjudicate the CUE claim 
and notify the veteran of the decision and 
of her appellate rights.  If the CUE claim 
is denied and the veteran files a timely 
notice of disagreement, the RO should 
issue an appropriate statement of the case 
(SOC) and notify the veteran that the 
matter will be before the Board only if a 
timely substantive appeal is submitted.

2. The RO should then readjudicate the 
earlier effective date claim for the grant 
of service connection for PTSD, 
considering the determination in the CUE 
claim.  If the effective date claim 
remains denied, the RO should issue an 
appropriate supplemental SOC and give the 
veteran the opportunity to respond.  The 
case should then be returned to the Board, 
if in order, for further review. 

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).  This claim must be 
afforded expeditious treatment.  The law requires that all 
claims that are remanded by the Board for additional 
development or other appropriate action must be handled in an 
expeditious manner.  



_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board is appealable to the United States Court of Appeals for 
Veterans Claims.  This remand is in the nature of a 
preliminary order and does not constitute a decision of the 
Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) 
(2007).