Citation Nr: 0814152 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-14 209A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than October 10, 2001 for the grant of service connection for post-traumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL Appellant, M.L., and J.N. ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to January 1970. He is a Vietnam veteran who was awarded the Purple Heart Medal. This matter is before the Board of Veterans' Appeals (Board) from a December 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the veteran's claim for an effective date earlier than October 10, 2001 for the grant of service connection for PTSD. The RO issued a notice of the decision in January 2003, and the veteran timely filed a Notice of Disagreement (NOD) in February 2003. The RO provided a Statement of the Case (SOC) in March 2006 and thereafter, in May 2006, the veteran timely filed a substantive appeal. In March 2008, the veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims folder. Other Matter In February 2003, the veteran filed a claim for an effective date earlier than October 10, 2001 for the grant of TDIU. The RO denied the claim in a September 2003 rating decision. The veteran filed a timely NOD that same month. The record reflects that the RO has not issued the requisite SOC with respect to this claim pursuant to 38 C.F.R. § 20.200. Therefore, the Board must remand the claim for an effective date earlier than October 10, 2001 for the grant of TDIU for proper issuance of an SOC, and to provide the veteran an opportunity to perfect an appeal of the issue thereafter by filing a timely substantive appeal. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). FINDINGS OF FACT 1. By a January 2002 decision, the RO granted a 70 percent disability rating for service-connected PTSD, effective from October 10, 2001; the veteran did not appeal that decision. 2. The veteran submitted a free-standing claim for an earlier effective date for service connection for PTSD in December 2002. CONCLUSION OF LAW An effective date prior to October 10, 2001 for the grant of service connection for PTSD is not warranted. 38 U.S.C.A. §§ 5110, 7104 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.400, 20.101 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). That is, the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the instant case, resolution of the appeal depends upon an interpretation of the laws, regulations and judicial precedent pertaining to free-standing earlier effective date claims. Therefore, because no reasonable possibility exists that any additional VCAA notice would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). II. Law and Regulations a. Finality of Decisions Under 38 C.F.R. § 20.302(a), a claimant must file an NOD with an RO decision "within one year from the date that that agency mails notice of the determination to [the veteran]." 38 C.F.R. § 20.302(a). If a claimant does not file an NOD with the RO decision within the applicable time periods, such a decision shall become final; that is, it no longer will be in appellate status or otherwise pending. 38 U.S.C.A. § 7105; accord 38 C.F.R. § 20.302(a). b. Earlier Effective Date 38 U.S.C.A. § 5110(a) sets forth the provisions governing effective dates of awards for compensation. It provides that "[u]nless specifically provided otherwise in this chapter . . . the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a) (Emphasis added). The implementing regulation, 38 C.F.R. § 3.400 similarly provides that "[e]xcept as otherwise provided, the effective date of an evaluation and award of . . . compensation . . . will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (Emphasis added). c. "Free-Standing" Effective Date Claims In Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court addressed the issue of whether a veteran may bring a "free- standing" earlier effective date claim with respect to a service connected disability when the RO decision that assigned the effective date had become final due to the veteran's failure to appeal said decision. Rudd, 20 Vet. App. at 299. The Court noted that "the Federal Circuit has made it clear that [a veteran] could attempt to overcome the finality of those decisions-in an attempt to gain earlier effective dates-in one of two ways, by a request for revision of those [RO] decisions based on clear and unmistakable error, or by a claim to reopen based on new and material evidence." Id. The Court observed that "[o]f the two, because the proper effective date for an award based on a claim to reopen [or an original claim as here] can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110(a), only a request for revision premised on clear and unmistakable error could result in the assignment of earlier effective dates for the awards of service connection . . . ." Id. Where, as here, a veteran does not challenge an earlier effective date on the basis of clear and unmistakable error (CUE), "[t]he only remaining possibility . . . is that the claim can be processed as some form of freestanding claim for earlier effective dates even though the [RO] decisions assigning effective dates were not appealed to the Board and became final." Id. at 300. The Court rejected such a possibility as "vitiat[ing] the rule of finality," and in this regard, held that "to the extent that [a veteran] has improperly raised a freestanding 'claim for an earlier effective date' in an attempt to overcome the finality of [RO] decisions, his appeal will be dismissed." Rudd, supra, at 300. In addition, the Court observed that "the Board erred to the extent that it entertained such an improper 'claim' without imposing the strictures of finality." Id. III. Analysis a. Factual Background In January 2002, the RO granted a 70 percent rating for the veteran's service- connected PTSD, effective from October 10, 2001, the date the RO received the veteran's claim. It also provided a notice of this decision in January 2002, which apprised the veteran of his appellate rights. The veteran thereafter did not appeal that decision. Approximately one year later, in December 2002, the veteran submitted a statement wherein he indicated a desire "to initiate[] a claim to establish an earlier effective date of 4/18/95 for Post Traumatic Stress Disorder (PTSD)." b. Discussion The Board determines that the January 2002 RO decision, which granted a 70 percent rating for PTSD, effective from October 10, 2001, constitutes a final decision because the veteran did not submit an NOD. Accordingly, and pursuant to Rudd, the only way that the veteran could challenge the effective date assigned would be if he alleged CUE. That is, bearing in mind preserving the rule of finality, he could not properly submit, nor could the Board properly adjudicate, a "free-standing" earlier effective date claim. Rudd, 20 Vet. App. at 300. The record reflects also that the veteran has not in fact raised a CUE issue with respect to the effective date of October 10, 2001 for his service-connected PTSD, See Fugo v. Brown, 6 Vet. App. 40, 43, 44 (1993) (holding that to raise a CUE issue, "the claimant must state why it is CUE and present a compelling case that the result would have been manifestly different"), nor has the RO adjudicated such an issue. Instead, as reflected in the veteran's February 2003 NOD and March 2008 hearing testimony, the veteran has claimed only that VA failed in its duty to assist him by not helping him file a service connection claim for PTSD prior to 2001 or that because he was prescribed the same medication [Lorazepam] in 1995 for depression that he was prescribed in 2001 for PTSD, he should receive service connection retroactive to the date of onset of his depression symptoms. Id. at 44 (noting that "[i]t is difficult to see how wither failure in 'duty to assist' or failure to give reason or bases could ever be CUE"). Under these circumstances, the Board must dismiss the instant appeal. Rudd, 20 Vet. App. at 300. ORDER The claim for an effective date earlier than October 10, 2001 for the grant of service connection for PTSD, evaluated at 70 percent, is dismissed. REMAND In February 2003, the veteran filed a claim for an effective date earlier than October 10, 2001 for the grant of TDIU. The RO denied the claim in a September 2003 rating decision. The veteran filed a timely NOD that same month. The RO has not yet issued a SOC with respect to this issue. Under these circumstances, the Board must remand this issue so that the RO can provide the veteran an SOC, and afford him an opportunity to perfect an appeal of these issues thereafter by filing a timely substantive appeal. See Manlincon, 12 Vet. App. at 240-41. Accordingly, the case is REMANDED for the following action: The RO should issue a Statement of the Case to the veteran addressing the issue of entitlement to an effective date earlier than October 10, 2001 for the grant of TDIU. The veteran must also be provided an opportunity to perfect his appeal of this claim by submitting a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs