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