Citation Nr: 1300792 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-43 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to August 3, 1998 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran had a hearing before the Board in October 2012 and the transcript is of record. During the pendency of this appeal, the Veteran claimed clear and unmistakable error (CUE) with a July 1983 rating decision that previously denied entitlement to service connection a nervous condition and posttraumatic stress syndrome. Although intended as part of his appeal seeking an earlier effective date here, the Board concludes the matter is not properly before the Board here and is REFERRED to the RO for proper adjudication. FINDINGS OF FACT 1. The RO issued a rating decision in November 1998 granting service connection for PTSD, effective August 3, 1998, the date of a claim to reopen. Although provided notice thereof, the Veteran did not perfect an appeal. 2. In December 2007, the Veteran filed a claim for entitlement to an effective date prior to August 3, 1998 for the grant of service connection for PTSD. CONCLUSION OF LAW The claim of entitlement to an effective date prior to August 3, 1998, for the grant of service connection for PTSD is denied as a matter of law. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory notice and duty to assist, those provisions are not applicable herein where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The record supports the Veteran's reports that he was treated for nervousness and a generalized anxiety disorder in 1982. As shown below, however, such is not relevant to the Veteran's current appeal which must be denied as a matter of law. A July 1983 rating decision denied the Veteran service connection for a nervous condition and for posttraumatic stress syndrome. Although the Veteran was provided notice of that rating decision and notice of his appellate rights in July 1983, the Veteran did not submit an appeal. In August 1998, the Veteran submitted a claim to reopen the issue of entitlement to service connection for a posttraumatic delayed stress. The Veteran asserted that he should be granted service connection for PTSD and that the claim should be considered from 1981. By rating action in November 1998 the RO granted the Veteran service connection for PTSD. The November 1998 rating decision assigned the Veteran a 30 percent disability rating, effective August 3, 1998, the date of the Veteran's claim to reopen. After the claim was granted and the initial rating and effective date were assigned, the Veteran was provided notice of the rating decision and notice of his appellate rights in December 1998. The Veteran did not submit an appeal with regard to the effective date of service connection. In May 1999 the Veteran did submit a notice of disagreement with respect to the 30 percent rating assigned. A June 1999 rating decision granted the Veteran a 100 percent rating for PTSD effective from August 3, 1998, the date of service connection. The Veteran did not appeal the June 1999 rating decision. In December 2007, the Veteran filed a claim for entitlement to an earlier effective date for the grant of service connection for PTSD. The Veteran perfected this appeal in October 2009, and the claim has been certified to the Board for appellate review. As discussed above, the Veteran filed a claim to reopen in August 1998. The November 1998 rating decision granted service connection for PTSD noting that the Veteran had received the Combat Action Ribbon and that outpatient treatment reports from May 1982 to October 1998 indicated treatment for PTSD. However, with respect to the effective date of the grant of service connection, the Veteran did not appeal the November 1998 decision. It is clear from the Veteran's submitted statements and testimony before the Board that he does not dispute the fact that he did not appeal the November 1998 rating decision with respect to the effective date assigned for service connection for PTSD. Rather, the claim currently on appeal wholly concerns whether the Veteran is entitled to an effective date prior to August 3, 1998, for the grant of service connection of PTSD. Despite the Veteran's various claims regarding the handling of his case in 1983, his current appeal bears no relationship to the Veteran's 1980s claim of entitlement to service connection for a nervous disorder, or the denial thereof. After a rating decision that grants service connection and assigns an effective date becomes final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Free-standing earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Accordingly, where a free-standing earlier effective date claim is made without a request for reconsideration due to clear and unmistakable error in the relevant rating decision, the claim must be denied as a matter of law. Id. The November 1998 rating decision, which granted service connection for PTSD, effective August 3, 1998, is final with respect to the effective date of service connection. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran has not alleged that the RO committed CUE within the November 1998 rating decision, which assigned an effective date of August 3, 1998. Consequently, the Veteran's December 2007 claim of entitlement to an effective date prior to August 3, 1998 for the grant of service connection for PTSD is a free standing claim for entitlement to an earlier effective date and, thus, is denied as a matter of law. Rudd, 20 Vet. App., at 299; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date prior to August 3, 1998 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs