Citation Nr: 0814639 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-17 181A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than February 11, 1998 for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Armand L. Andry, Esq. WITNESSES AT HEARING ON APPEAL The veteran and his spouse INTRODUCTION The veteran served on active duty in the United Sates Army from March 1948 to June 1952. He was awarded the Combat Medical Badge for service in Korea during the Korean Conflict. Service connection for PTSD was granted in a January 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (the RO), effective from February 11, 1998. In a December 2004 rating decision, the RO granted a 100 percent disability rating for PTSD, effective February 11, 1998. In March 2005, the veteran through counsel expressed disagreement with the effective date assigned for service connection. This appeal followed. In April 2008, the veteran and his spouse testified at a videoconference hearing which was chaired by the undersigned Veterans law judge. A transcript of that hearing has been associated with the veteran's VA claims folder. On the veteran's own motion the Board advanced this case on its docket due to the veteran's advancing age. See the hearing transcript, page 39; see also 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. An effective date of February 11, 1998 for entitlement to service connection for PTSD was assigned in a January 1999 RO rating decision. 2. The veteran initially disagreed with the assigned effective date via letters from his attorney dated June 9, 2004 and March 16, 2005. CONCLUSIONS OF LAW 1. The January 1999 RO decision is final as to the matter to the assignment of an effective date for service connection for PTSD. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. The veteran's current claim of entitlement to an earlier effective date for service connection for PTSD was not timely filed and must be dismissed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2007); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to an effective date earlier that the currently assigned February 11, 1998 for service connection for PTSD. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United Sates Court of Appeals for Veterans Claims (the Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. As is discussed below, the veteran's claim is being dismissed by the Board because the veteran did not raise the earlier effective date issue in a timely fashion. The claim is therefore being dismissed based on the law. Whatever facts are necessary to adjudicate the claim are already contained in the claims folder. Thus, notice or assistance to the veteran would be fruitless. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. Analysis Factual background In January 1999 rating decision, the RO granted service connection for PTSD and assigned an effective date of February 11, 1998 for service connection. This was the date of the veteran's claim of entitlement to service connection for PTSD. The veteran was duly informed of that decision, including the effective date, and of his appeal rights in a letter dated January 25, 1999 from the Chicago RO. On January 18, 2000, the veteran filed a notice of disagreement as to the 50 percent disability rating which had been assigned in the January 1999 rating decision; he did not mention the effective date. [A statement of the case as to the increased rating was issued by the RO in March 2000. The veteran did not file a substantive appeal.] In March 2003, the veteran through his attorney requested an increased rating for PTSD. In a July 2003 rating decision, the RO granted a 70 percent rating, effective March 31, 2002. In July 2004, the veteran's attorney filed a notice of disagreement as to the effective date assigned, contending that the effective date of the increased rating should be January 25, 1998. In a December 2004 RO rating decision, a 100 percent disability rating was assigned for PTSD, effective February 11, 1999, the date of service connection. On March 16, 2005, the veteran's attorney disagreed with the effective date assigned for service connection, contending that service connection should be granted retroactive to 1953. In May 2005, the RO denied an effective date earlier than February 11, 1998 for service connection for PTSD. The veteran has duly perfected an appeal as to that issue. Discussion In August 2006, the Court issued Rudd v. Nicholson, 20 Vet. App. 296 (2006) in which it was held that where a rating decision which established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on clear and unmistakable error (CUE). In essence, the Court in Rudd held that there is no "freestanding" earlier effective date claim which could be raised at any time. See Rudd, 20 Vet. App. at 299. Based on the precedential Court decision in Rudd, and as more fully explained below, the Board finds that the veteran's claim for an earlier effective date claim for service connection for PTSD must be dismissed. As was described in the factual background section above, an effective date for service connection for PTSD of February 11, 1998 was established in the January 1999 RO rating decision. Although the veteran disagreed with the assigned rating, he did not disagree with the effective date. The January 1999 rating decision is therefore final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The first time that the matter of an effective date was mentioned was in a letter from his attorney dated June 9, 2004 and received at the RO in July 2004. This communication seemingly only intended to seek an earlier effective date for the increased rating, not service connection. However, the attorney requested an effective date of January 25, 1998, which was earlier than the February 11, 1999 effective date which had been assigned. The Board will interpret this July 2004 submission on behalf of the veteran as a claim for an earlier effective date for service connection for PTSD. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991) [VA must liberally construe all documents filed by a claimant]. The veteran's attorney more clearly asked for a much earlier effective date for service connection in a letter dated March 16, 2005. In any event, whichever communication for the veteran's attorney may be interpreted as a claim for an earlier effective date for service connection for PTSD, such was filed several years after the January 1999 decision being challenged. Because the veteran did not appeal that decision as to the effective date, that decision became final as to that matter. That being the case, the veteran is left with only one option in his attempt to obtain an earlier effective date: a claim alleging that the January 1999 RO contained CUE. See 38 C.F.R. § 3.105. To date, he has not filed such a claim. The Court made it abundantly clear in Rudd that under these circumstances dismissal is required due to the lack of a proper claim. See Rudd, 20 Vet. App. at 300. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal as to this issue without prejudice to the veteran's filing a CUE claim. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim of entitlement to an effective date earlier than February 11, 1998 for service connection PTSD is dismissed. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs