Citation Nr: 1305071 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-33 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date earlier than April 1, 1970, for the grant of service connection for residuals of a gunshot wound to the left thigh. 2. Entitlement to an effective date earlier than April 1, 1970, for the grant of service connection for major depressive disorder with recurrent psychosis, panic disorder and posttraumatic stress disorder (PTSD). 3. Entitlement to an effective date earlier than June 21, 1999 for the award of a 100 percent rating for major depressive disorder with recurrent psychosis, panic disorder and PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1961 to March 31, 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claims for an earlier effective date for the award of service connection for residuals of a gunshot wound to the left thigh and major depressive disorder. In addition, the Veteran appeals from an August 2009 rating decision which, in pertinent part, denied his claim for an earlier effective date for the grant of a 100 percent rating for major depressive disorder. A review of the Virtual VA paperless claims processing system does not reveal documents pertinent to the claims on appeal. The Board notes that a September 1970 rating decision granted service connection for a schizophrenic reaction. This disability claim was later restyled to include major depressive disorder with recurrent psychosis, panic disorder and PTSD in an October 2000 rating decision. The issue of entitlement to an effective date earlier than June 21, 1999 for the award of a 100 percent rating for major depressive disorder with recurrent psychosis, panic disorder and PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. A September 1970 rating decision granted service connection for residuals of a gunshot wound to the left thigh, effective April 1, 1970; this rating decision was not appealed. 2. A September 1970 rating decision granted service connection for a schizophrenic reaction, effective April 1, 1970; this rating decision was not appealed. CONCLUSIONS OF LAW 1. The claim of entitlement to an effective date earlier than April 1, 1970, for the grant of service connection for residuals of a gunshot wound to the left thigh is dismissed. 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5108, 7103, 7104(b), 7105(d)(5), 7111, 7266 (West 2002); 38 C.F.R. § 20.904 (2012). 2. The claim of entitlement to an effective date earlier than April 1, 1970, for the grant of service connection for major depressive disorder with recurrent psychosis, panic disorder and PTSD is dismissed. 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5108, 7103, 7104(b), 7105(d)(5), 7111, 7266 (West 2002); 38 C.F.R. § 20.904 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As will be discussed in greater detail below, resolution of these appeals rest on the interpretation of the law, rather than a dispute as to the underlying facts of this case. Under such circumstances, the VCAA is inapplicable. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). II. The Merits of the Claims The Veteran contends that he is entitled to an effective date prior to April 1, 1970, for the grant of service connection of residuals of a left thigh gunshot wound and major depressive disorder. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A previous determination, which is final and binding, will be accepted as correct in the absence of clear and unmistakable error (CUE). See 38 C.F.R. § 3.105(a). A written communication from a claimant or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement. While special wording is not required, the notice of disagreement must be in terms, which can be reasonably construed as disagreement with that determination and a desire for appellate review. See 38 C.F.R. § 20.201. By way of background, the Veteran filed his original claim of entitlement to service connection for a nervous breakdown and a stab wound on May 15, 1970. A September 1970 rating decision granted the claims and an effective date of April 1, 1970, the day after the Veteran was discharged from service, was assigned. The Court of Appeals for Veterans Claims (Court) has determined that when an effective date on appeal was assigned in a final unappealed rating decision, a claimant cannot attempt to overcome the finality of that prior rating decision by raising "a freestanding claim" for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Rather, the only way to overcome the finality of a final decision in an attempt to gain an earlier effective date is by a request for revision of that final RO decision based on CUE. Id. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of the recognized statutory exceptions to finality. Id. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary). The RO received a claim for an earlier effective date for the grant of service connection on July 2, 2008. The Veteran had been informed of the September 1970 rating decision in a letter dated October 16, 1970; he did not file a notice of disagreement with respect thereto. Thus, the September 1970 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. At no time has the Veteran alleged CUE in a prior RO decision. As the Veteran is now pursuing a "freestanding claim" for an earlier effective date for this grant, the claim for an earlier effective date must be dismissed. See Rudd, 20 Vet. App. at 300. Accordingly, as the September 1970 rating decision which granted service connection for a gunshot wound to the left thigh and a schizophrenic reaction is final, and because the Board may not review a freestanding claim of entitlement to an earlier effective date, the Veteran's appeals herein for an earlier effective date must be dismissed. See Rudd, supra; 38 U.S.C.A. §§ 7104, 7105(d)(5), 7111. ORDER The claim of entitlement to an effective date earlier than April 1, 1970, for the grant of service connection for residuals of a gunshot wound to the left thigh is dismissed. The claim of entitlement to an effective date earlier than April 1, 1970, for the grant of service connection for major depressive disorder with recurrent psychosis, panic disorder and PTSD is dismissed. REMAND The August 2012 rating decision denied the Veteran's claim for an effective date earlier than June 21, 1999 for the award of 100 percent rating for major depressive disorder with recurrent psychosis, panic disorder and PTSD, including on the basis of whether there was clear and unmistakable error in an April 1970 rating decision. In an August 2009 VA From 9, the Veteran indicated that he should have been rated as 100 percent disabling from his service discharge. This filing constitutes a timely notice of disagreement with the August 2012 rating decision. A statement of the case (SOC) addressing this appeal has not been issued. The Board is required to remand the claim for an effective date earlier than June 21, 1999 for the award of a 100 percent rating for major depressive disorder to allow a SOC to be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO/AMC should issue a statement of the case addressing the claim for an effective date earlier than June 21, 1999 for the award of a 100 percent rating for major depressive disorder with recurrent psychosis, panic disorder and PTSD. This issue should not be certified to the Board unless a timely substantive appeal is received. If a timely substantive appeal is not received, the appeal should be closed. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs