Citation Nr: 0814946 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 07-12 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date earlier than March 31, 2004, for the initial grant of service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran's Son and Spouse ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from May 1951 through May 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that in an October 2007 written statement, in an April 2008 written statement, and at the April 2008 Board hearing, the issue of whether clear and unmistakable error (CUE) exists in prior VA decisions denying the veteran benefits. This issue is REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. In a May 2004 rating decision, the RO granted service connection for PTSD, and assigned a 100 percent rating, effective March 31, 2004. The veteran was informed of that determination in May 2004 and of his appeal rights. He did not appeal. 2. In September 2005, the veteran raised the claim of entitlement to an earlier effective date for his service- connected PTSD. CONCLUSION OF LAW 1. The May 2004 rating decision is final as to the matter of the assignment of March 31, 2004, as the effective date for service connection for PTSD. 38 C.F.R. §§ 20.302(a), 20.1103(2007). 2. The veteran's September 2005 claim of entitlement to an earlier effective date was not timely filed and must be dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking an effective date prior to March 31, 2004, for the award of a 100 percent rating for service connection for PTSD. The recent procedural history of this matter is relevant to this claim and summarized below. The veteran was denied service connection for a convulsive disorder with anxiety reactions in a February 1965 rating decision. In March 2004, he filed a claim for service connection for PTSD, which was granted in a May 2004 rating decision. These decisions were not appealed within one year and are, therefore, final. 38 C.F.R. §§ 20.302(a), 20.1103. In September 2005, the veteran, by way of his fiduciary, requested that his "Service Connected Disability date be made effective from an earlier date." He essentially claims that the veteran's PTSD was present at the time of his discharge from service and should have an effective date of date of discharge. The RO developed the claim as a request for an earlier effective date and denied it in the June 2006 rating decision under appeal. The veteran has raised the issue of an earlier effective date outside of the appeal period of the May 2004 rating decision granting PTSD effective March 31, 2004. The notice of the May 2004 decision was mailed to the veteran on May 28, 2004. A timely notice of disagreement with the effective date of the award therefore, would have to have been filed by May 28, 2005. 38 C.F.R. §§ 20.302(a), 20.1103. The claim at issue was filed September 2005, several months late. As such, it must be considered a "freestanding" claim for an earlier effective date. In August 2006, the Court of Appeals for Veteran's Claims (Court) issued Rudd v. Nicholson, 20 Vet. App. 296 (2006). In that three- judge decision, the Court held that where a rating decision that 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 that could be raised at any time. See Rudd, 20 Vet. App. at 299. As stated in the introduction above, the veteran, in October 2007, raised a claim for an earlier effective date based upon CUE. This issue is REFERRED to the RO for appropriate action, as it is a separate and distinct claim from an earlier effective date issue. Based on the recent precedential Court decision in Rudd, the Board finds that the veteran's freestanding earlier effective date claim for service-connected PTSD must be dismissed. The veteran's disagreement as to the effective date was filed well beyond the filing deadline for a notice of disagreement with the effective date for the final May 2004 rating decision. The May 2004 rating decision is final as to the matter of the veteran's entitlement to an effective date earlier than March 31, 2004, for his 100 percent rating for PTSD. The Court made it 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 reconsideration motion. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has given consideration to VA's duty to notify and assist the veteran in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005). However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the Court held that these duties have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. As discussed above, 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. ORDER The claim of entitlement to an effective date for the award of service connection for PTSD prior to March 31, 2004, is dismissed. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs