Citation Nr: 1241558 Decision Date: 12/05/12 Archive Date: 12/12/12 DOCKET NO. 07-34 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability manifested by memory loss as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than July 17, 1997, for the award of service connection for PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran had active military service from May 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran does not have a separate disability manifested by memory loss that is caused or aggravated by his service-connected PTSD. 2. The Veteran was denied service connection for PTSD by way of a rating decision dated in September 1991. The Veteran did not appeal the decision and it became final. 3. The Veteran was awarded service connection for PTSD by way of a September 1998 rating decision. The effective date for service connection was established as July 17, 1997. The Veteran did not appeal the decision and it became final. 4. The Veteran submitted a claim of clear and unmistakable error (CUE) as to the effective date for service connection for PTSD in the rating decision of September 1998. The Board denied the Veteran's claim in August 2010. CONCLUSIONS OF LAW 1. Entitlement to service connection for a disability manifested by memory loss as secondary to service-connected PTSD is denied. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The claim for an effective date earlier than July 17, 1997, for the award of service connection for PTSD, lacks legal merit. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Secondary Service Connection A. Background The Veteran was granted service connection for PTSD by way of a rating decision dated in September 1998. Evidence used to establish service connection included a private psychological evaluation by T. C. North, Ph.D., dated in July 1997. The evaluation report also included the results of psychological testing. In regard to the Minnesota Multiphasic Personality Inventory-II (MMPI-II), Dr. North said the Veteran's profile was questionable. She said it appeared that the Veteran may have exaggerated his symptoms of distress somewhat as a plea for help. She did not think the Veteran's responses represented a confused state. The examiner did not report any problems with memory. The examiner did note that, based on the Veteran's report of alcohol use, alcohol abuse may be a problem for the Veteran. The Veteran was diagnosed with PTSD related to his combat experiences in Vietnam. Records from the Social Security Administration (SSA) were associated with the claims folder; however, the medical evidence was dated in 1992. A psychological evaluation from October 1992 noted that the Veteran endorsed 17 symptoms listed as criteria for a somatization disorder. The Veteran reported being struck in the head with a baseball bat as a child but did not report any type of head injury in service. The SSA examiner said that the Veteran's ability to receive, organize, analyze, remember, and express information appropriately in a conversational setting was impaired by his marked hostility as well as his tendency to rationalize and his use of projection and denial. The examiner said the Veteran reported memory problems where he would "block things out." The examiner said that on the basis of the Veteran's vocabulary, his immediate memory for digits and responses to questions requiring judgment, his intellectual functioning was in the average range. The examiner stated that there were no indications of memory difficulties. The examiner said that the Veteran's ability to sustain concentration and attention needed for task completion did not appear to be impaired except during a temper outburst. He also said the Veteran was able to understand and remember simple instructions but would have difficulty carrying out short and simple instructions under ordinary supervision because of his negativistic and oppositional tendencies. The examiner provided diagnoses of somatization disorder, probable alcohol abuse and borderline personality disorder. The Veteran was afforded a VA PTSD examination in September 1998. The examiner noted that she had reviewed the August 1997 report from Dr. North. The examiner stated that the Veteran was oriented times three and that his memory was intact. She said the Veteran's estimated IQ was above average. The Veteran had poor insight but good judgment for hypothetical situations. The Veteran was noted to have difficulty in concentrating. The examiner provided Axis I diagnoses of PTSD and alcoholism. She also gave the Veteran a Global Assessment of Functioning (GAF) score of 28. The Veteran was granted service connection for PTSD as indicated in September 1998. His disability was rated at the 100 percent level based on the results of the VA examination. It has remained at that level to the present. The Veteran was afforded a VA PTSD examination in August 2000. The purpose of the examination was to evaluate the Veteran since his last examination in 1998. The examiner reported that the Veteran took care of his personal matters. In that regard, he noted that the Veteran carried records in a zip lock bag. The Veteran removed specific records in reference to his Agent Orange claim. The examiner said this indicated to him that the Veteran knew the nature and consequences of his business and the capacity to organize his business matters effectively. The examiner said the Veteran's recent and remote memory was intact. The examiner said the Veteran's PTSD appeared to have remained stable since the last examination. The examiner provided a GAF score of 55. The RO issued a rating decision that proposed to reduce the Veteran's rating for his service-connected PTSD to 70 percent in November 2000. This was based on the results of the latest VA examination. The Veteran submitted a letter from three VA mental professionals, a social worker, psychologist and a psychiatrist, dated in November 2000. The purpose of the letter was to support the Veteran's continued rating of 100 percent. Even with that intention, the letter said the Veteran was capable of managing his financial affairs. No memory problems were reported in the letter. The RO issued a rating decision that continued the Veteran's PTSD rating at the 100 percent level in January 2001. The Veteran attended routine outpatient visits in the PTSD clinic as evidenced by VA treatment records for the period from December 2000 to November 2002. The Veteran's PTSD remained stable with certain periods of situational stress. There were no reported memory problems. The Veteran submitted a claim for a separate disability identified as memory problems in July 2007. He contended that the disability was related to his service-connected PTSD. The Veteran submitted a VA outpatient entry dated in March 2006. The entry noted that the Veteran had requested a statement from his physician as to how PTSD may affect the Veteran's memory. The physician said the Veteran had chronic, persistent PTSD. The PTSD had caused problems with attention, memory, concentration and difficulties in keeping track of activities. The physician also said that the memory deficit was sufficiently severe that the Veteran qualified for participation in a research project for memory problems associated with PTSD. Associated with the claims folder are VA treatment records for the period from October 2005 to September 2007. A PTSD clinic note from October 2005 noted that the Veteran complained of memory problems. He was noted to be interested in the Memantine PTSD study. In May 2006 the Veteran was noted to be in week 8 of the study. He reported that his memory was sharp now and he was able to recall. He was to continue taking Memantine. An entry from September 2006 related to evaluation of a number of physical complaints in a primary care clinic visit. The assessment included a number of findings to include depression/dementia. The Veteran was to continue using Quitiapine, Wellbutrin and Memantine medications for treatment. The remaining entries related to treatment provided for a number of unrelated medical complaints. There were no complaints or comments regarding memory problems. The Veteran testified at a hearing before a Decision Review Officer (DRO) in December 2007. The Veteran said he felt he had memory problems soon after his discharge. He tried to block out things. He said he was asked at his VA appointments about what he remembered but he tried to blot out the memories. The Veteran referenced a June 1992 report from a counselor that said he did not have an alcohol problem. The counselor felt that the Veteran's problems may be due to prescription drug usage. The Veteran's representative related that the report addressed the Veteran's "blackouts." The Veteran said he had taken a memory test at VA and the results were not good. He gave an example of his forgetfulness as to one time he left his house and forgot to put his teeth in. He also said he would do something and forget five minutes later. He said he had problems on a daily basis. He said that he sometimes forgot to take his medication. The Veteran submitted a copy of the referenced social worker's report from Equilibria Medical Center dated in June 1992. The evaluation was done by a counselor at the Veteran's request. The evaluation was to assess whether the Veteran abused alcohol. There is nothing in the report related to memory problems or "blackouts" of any sort. The conclusion was that the Veteran did not have a serious problem with alcohol use. The counselor was concerned that the Veteran may be confused on his part about how to properly use his prescription medication. VA records for the period from January to April 2008 were associated with the claims folder. The Veteran was seen in the mental health clinic for his PTSD in January 2008. The entry noted that the Veteran's thought processes were logical and goal-directed and his thought content was relevant. There was no reference to any type of problems with memory or concentration. A primary care clinic entry from March 2008 noted that the Veteran was frustrated about his medication regimen. He related that he did not what he was supposed to be taking. The entry reported that the Veteran was taking 17 medications. The Board remanded the case for an examination to assess the Veteran's claimed memory disability in August 2010. The Veteran was afforded a VA examination in September 2010. The examination also included separate psychological testing. The summary of the psychologist's report of testing is as follows: [the Veteran] is a 61-year-old veteran referred for neurocognitive screening to help assess his memory functioning. He demonstrated impaired performance on the tasks required to initially learn information. His performance was not improved by the context or coherence of the information provided to him. After a delay, [the Veteran] had severely impaired free recall of information, which is consistent with his having been unable to store it properly initially. [The Veteran] demonstrates slowed processing speed, although he is able to be very accurate. He retains abstract reasoning capacity. Search and retrieval processes are either slow or impaired by inaccurate memory. His performance on the neurocognitive screening tests is consistent with a subcortical disease process (likely CVD) [cerebrovascular disease] more than a cortical one (such as DAT) [dementia of the Alzheimer type]. VA psychological testing report dated September 17, 2010. The VA examiner reviewed the claims folder as part of his examination report. The examiner noted the purpose of the examination was to determine if the Veteran had a memory loss disability that was the result of his service-connected PTSD or made worse by the PTSD. The examiner cited to several VA treatment record entries in his report, to include the March 2006 entry wherein the VA psychiatrist said the Veteran's PTSD caused problems with attention, memory, concentration and difficulties in keeping track of activities. The examiner also noted that the entry said the Veteran would be participating in a research project for memory problems associated with PTSD. The examiner cited to several additional outpatient entries. An entry from May 2010 noted that the Veteran had not been seen in the clinic since 2006 and his chart was to be closed. The examiner also noted an August 2010 entry that reported the Veteran with a diagnosis of PTSD and a GAF of 60. The examiner included the above summary of the psychological testing that was conducted in conjunction with the examination. The examiner said the Veteran reported forgetting what he was going to do and that he would forget where he put things. The Veteran also related that he sometimes forgot to take medication. The Veteran also said that he would go out when someone took him. The examiner reported that the Veteran's remote, recent and immediate memory was normal. He noted that the Veteran was able to handle his VA benefits and paid his own bills. The examiner did state that the Veteran's ability to handle his finances independently was in question but the Veteran's daughter oversaw the management of funds. He commented that a field survey may be in order in the future. The examiner provided Axis I diagnoses of PTSD and dementia, not otherwise specified (NOS). He said the Veteran had a GAF score of 60 for his PTSD and a GAF score of 45 for the dementia. The examiner added the diagnosis was dementia NOS because it had not been determined whether the dementia was a vascular dementia or dementia of the Alzheimer's type. The examiner stated that the neuropsychological testing indicated vascular dementia or dementia of the Alzheimer's type. He said that did not support the contention that his dementia was related to his PTSD. The examiner opined that the Veteran's dementia was neither caused by his service-connected PTSD nor made worse by the service-connected PTSD. He relied on the testing results that established the dementia as related to other factors. The Board notes that VA treatment records for the period from April 2008 to January 2012 are associated with the claims folder or in Virtual VA. The records do not reflect evidence to support a finding for a separate disability manifested as memory loss. They relate to treatment provided to the Veteran for a number of unrelated issues. B. Analysis A disability may be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Moreover, in general, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2012). In addition, memory loss is part of the symptomatology used to rate disabilities involving PTSD. In fact, the rating criteria for a 100 percent rating for PTSD cites to symptoms indicative of total occupation and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2012). Lower disabilities ratings also involve inclusion of memory loss such as a 30 percent rating where there is evidence of mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating include difficulty in understanding complex commands and impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks). Id. Here the Veteran alleges that he suffers from a separate disability manifested as memory loss that is due to or aggravated by his service-connected PTSD. The only medical evidence of record that supports his contention is the March 2006 VA outpatient entry that addresses the Veteran's claimed memory problems. The entry was used to include the Veteran in the memory research project. Outpatient entries from that time show he had improved memory with the use of the trial medication. However, no separate disability was ever diagnosed. Further, the Veteran's memory problems are consistent with those included in the rating criteria for his service-connected PTSD disability. The VA neuropsychological testing also does not establish a separate disability related to the Veteran's PTSD. The testing demonstrated that the Veteran has dementia. The exact type of dementia was not established but the VA examiner provided an opinion that related that the dementia was either due to a cerebrovascular disorder or Alzheimer's type dementia. He stated that it was not due to or caused by the Veteran's service-connected PTSD. The Board has considered that lay evidence in the form of statements of the Veteran is competent to establish evidence of symptomatology where symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that lay evidence may also be sufficient to establish a current diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (describing situations when lay evidence can be competent and sufficient to provide medical diagnosis); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although the United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit), has addressed the circumstances where lay evidence can/must be considered, both judicial bodies have also addressed where the Board may making findings that the lay statements are beyond the competence of the giver, or that the statements are not credible or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377. n.4 (Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). In this case, the Veteran is not competent to say that he has a separate disability that is manifested by memory loss. He is competent to relate symptoms regarding his memory problems. The symptoms related by the Veteran fall within the range of symptoms included in the regular rating criteria for psychiatric disabilities, to include PTSD. Moreover, the VA examination, and testing, of September 2010 found that there was no memory disability associated with the Veteran's PTSD. The diagnosed dementia was determined to be unrelated to the Veteran's PTSD. There is no medical opinion to the contrary. Thus, service connection for a separate disability, manifested by memory loss, as secondary to service-connected PTSD is denied. The Board notes that the Veteran's specific claim was for a disability involving memory loss. The probative medical evidence has established that there is no separate disability involving memory loss but that the Veteran does have dementia. However, this diagnosis has been found, by competent medical evidence, to be unrelated to the Veteran's service-connected PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). C. Veterans Claims Assistance Act of 2000 (VCAA), The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In addition, the Court has held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran submitted his claim in July 2007. The RO wrote to him that same month. The Veteran was advised that to substantiate his claim for secondary service connection he had to establish that a disability was due to, or aggravated by a service-connected disability. He was also informed of the types of evidence that would be beneficial in supporting his claim. He was further advised of the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence for him. He was asked to submit any medical reports that he possessed. The letter also included Dingess notice elements regarding effective dates and how disability ratings are determined. The Veteran responded in July 2007 that he had no additional information or evidence to submit in support of his claim. The Veteran testified at hearing before the DRO in December 2007. The Board remanded his case for additional development in August 2010. The requested additional development was completed. The Veteran's claim for secondary service connection was re-adjudicated in April 2012. The claim remained denied. The Veteran was issued a supplemental statement of the case (SSOC) that listed the evidence added to the record and provided the basis for the continued denial of the Veteran's claim. The Veteran has not disputed the contents of the VCAA notice in this case. He was afforded a meaningful opportunity to participate in the development of his claim. From the outset, he demonstrated actual knowledge of what was required to establish service connection on a secondary basis. He submitted evidence that he believed supported his claim, to include copies of the March 2006 VA outpatient entry. He testified as to why he believed service connection was in order. There is no evidence of prejudice to the Veteran based on any notice deficiency and he has not alleged any prejudice. Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA outpatient treatment records, private medical records, SSA records, VA examination reports and statements from the Veteran. The Veteran testified at a DRO hearing. The Board remanded his case for additional development. In regard to the VA examination, the Board finds that the Veteran was provided with an adequate examination in September 2010. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Veteran underwent neuropsychological testing that provided a diagnosis of dementia. The VA examiner reviewed the claims folder and earlier treatment reports as well as the test results. The examiner concluded that the Veteran did not have a separate memory disability and that the diagnosed dementia was unrelated to the Veteran's PTSD. The Board finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. II. Earlier Effective Date By way of background, a report of contact from the Veteran's representative, dated in November 1990, noted that the Veteran wished to file a claim of service connection for PTSD. This was the Veteran's initial claim concerning PTSD. The Veteran was afforded a VA examination in February 1991. The examiner found no evidence of a psychiatric illness. By a September 1991 rating decision, the RO denied service connection for PTSD on account of no current diagnosis of PTSD. A letter of notice of the decision was sent to the Veteran in October 1991. The Veteran did not initiate an appeal within one year of the notification of the September 1991 rating decision. Several correspondences were received during the year following the October 1991 notification letter, but none of them pertained to the PTSD service connection claim. Consequently, the RO's September 1991 rating decision became final. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 19.129, 19.192 (1991). The Veteran submitted a request to reopen his claim for service connection for PTSD that was received on July 17, 1997. He was granted service connection for PTSD by way of a rating decision dated in September 1998. He was also assigned a 100 percent rating at that time. The effective date of the award of service connection was set as July 17, 1997, the date of the claim to reopen. A letter of notice of this decision was sent to the Veteran in October 1998. The Veteran did not appeal the decision. As a result, the September 1998 decision also became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1998). The Veteran submitted a claim to challenge to the September 1998 rating decision on the basis of clear and unmistakable error (CUE) in August 2007. The allegation was that there was CUE in the rating decision as to the effective date for the grant of service connection for PTSD. This claim was denied by the Board in a decision dated in August 2010, which is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2010). The Veteran submitted a claim for entitlement to an effective date earlier than July 17, 1997, for the award of service connection for PTSD in July 2010. At the time, the Veteran referenced a notation on his separation physical examination Report of Medical History that noted an acute anxiety reaction in service that was said to be not considered disqualifying (NCD). Of note, the Veteran checked "no" on the block of the RMH that asked if he had experienced any nervousness or anxiety during service. Contrary to statements made by the Veteran he did not make a claim for any psychiatric disorder with his original claim in August 1971. He listed a number of his issues on his claim form but did not make any reference to a psychiatric disorder. Moreover, he was afforded several VA examinations at that time and did not mention any psychiatric symptoms. The Veteran submitted multiple claims in the years between August 1971 and November 1990. He did not reference any type of a psychiatric disorder and the various VA examinations and the medical records in the claims folder did not include evidence of any type of a psychiatric disorder or disability, notably PTSD. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection, a claim re-opened after final disallowance, or a claim for increase "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an 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 U.S.C.A. § 5110(a), (b) (1); 38 C.F.R. § 3.400(b) (2). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court), held that 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 (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal must be dismissed. Moreover, in Leonard v. Nicholson, the United States Court of Appeals for the Federal Circuit determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). In short, when there has been a final decision on the question of effective date for the award of service connection, a claim to reopen cannot provide the basis for an award of an earlier date, even if new and material evidence is presented. The evidence of record establishes that the Veteran submitted his initial claim for service connection for PTSD in November 1990. The claim was denied in September 1991. Proper notice was provided and the Veteran failed to appeal. The Veteran sought to reopen his claim for service connection for PTSD with a submission received on July 17, 1997. Service connection for PTSD was granted in September 1998. The effective date was established as of the date of the reopened claim, July 17, 1997. He did not appeal the effective date established. The Veteran later challenged the effective date on the basis of CUE in 2007. However, the Board denied the claim. The Veteran did not appeal the Board's decision and it is now final. The Veteran's claim for service connection for PTSD was granted on the basis of a reopened claim. His effective date was established in accordance with the applicable statutory and regulatory provisions for a reopened claim. The evidence is unequivocal in that regard. The Veteran also challenged the effective date on the basis of CUE but that claim was also denied. Upon review of the evidence of record, and the Veteran's contentions as to why he should receive an earlier effective date for the grant of service connection for PTSD, the Board finds that there is no legal basis to grant his current claim. In light the posture of this case, the VCAA does not apply to this issue. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004. ORDER Service connection for a disability manifested by memory loss as secondary to service-connected PTSD is denied. The claim for entitlement to an effective date earlier than July 17, 1997, for the grant of service connection for PTSD is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs