Citation Nr: 1307772 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-06 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral pes planus, claimed as secondary to a service-connected lumbar spine disability. 2. Entitlement to an effective date prior to March 6, 2001, for a 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to an effective date prior to October 15, 1997, for a separate 10 percent disability rating for a service-connected scar of the left forearm. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970 and was awarded a Purple Heart, a Combat Infantryman Badge, and a Bronze Service Star with "V" device for his service in Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA), Roanoke, Virginia, Regional Office (RO), which denied the aforementioned claims. The Veteran disagreed with the decision and subsequently perfected an appeal. In July 2011, the Veteran testified before the undersigned acting Veterans Law Judge during a videoconference Board hearing. A copy of the hearing transcript is of record and has been reviewed. Concerning the claim for an earlier effective date for a separate 10 percent rating for a scar of the left forearm, the Board notes that in the August 2009 RO decision on appeal, the RO denied entitlement to an earlier effective date for "service connection" for a scar of the left forearm. However, the Board notes that service connection for residuals of a shell fragment wound of the left forearm was granted in a July 1970 RO decision. Within that July 1970 decision, the RO considered the symptomatology of the scar in establishing the initial disability rating for residuals of a shell fragment wound of the left forearm. The present separate 10 percent disability rating for the scar of the left forearm was established in response to the Veteran's claim for an increased rating for his "s/c left (SFW) arm." As such, the Board has recharacterized the claim as a claim for an earlier effective date for the separate, increased rating for the scar on its own rather than an earlier effective date for service connection. The issue of entitlement to an increased rating for the service-connected scar of the left forearm been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. (The issues of service connection for cervical nerve damage with decreased strength of both arms, including as a result of in-service explosive impact, and a bilateral hip disability are discussed in a separate decision.) FINDINGS OF FACT 1. The Veteran does not have bilateral pes planus. 2. The Veteran filed a claim for increased rating for his service-connected PTSD in October 1997. 3. The RO denied the claim for an increased rating for PTSD in an June 1998 rating decision and the Veteran disagreed with the decision and indicated in a written statement that a grant of a disability rating of 50 percent for his PTSD would constitute a full grant of my appeal. 4. A February 1999 rating decision awarded a 50 percent disability rating for PTSD. The Veteran was notified of this decision in February 1999 and the rating decision sent to the Veteran indicated that in accordance with the Veteran's February 1999 statement, the decision constituted a full grant of the benefits sought on appeal and the appeal of the June 1998 decision was considered withdrawn. The Veteran did not respond to the RO's February 1999 notice letter and did not perfect an appeal of the February 1999 decision, and this decision became final. 5. On March 6, 2001, the Veteran filed a claim for increased rating for his service-connected PTSD; prior to that date, there was no pending claim pursuant to which a higher rating could have been granted, or evidence during the one-year period prior to that date from which it is factually ascertainable that an increase in disability had occurred. 6. In a July 1970 rating decision, the RO granted the claim for service connection for residuals of a shell fragment wound of the left forearm and assigned an initial disability rating of 10 percent from April 2, 1970, the date of receipt of the claim for service connection. 7. The Veteran was notified of the July 1970 decision in July 1970, the Veteran did not file an appeal of that decision, and this decision became final. 8. In a June 1998 rating decision, the RO assigned a separate 10 percent rating to the scar as a residuals of a shell fragment wound of the left forearm from October 15, 1997, the date of receipt of the claim for an increased rating. 9. The Veteran was notified of the June 1998 decision in July 1998 and the Veteran did not file an appeal of that decision, and this decision became final. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by bilateral pes planus have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 2. The criteria for the assignment of an effective date earlier than March 6, 2001 for the award of a 70 percent rating for PTSD have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.157, 3.400 (2012). 3. The claim for an effective date earlier than October 15, 1997 for the award of a separate 10 percent rating for a scar of the left forearm is dismissed. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.157, 3.400, 20.200, 20.201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided a VCAA notice letter to the Veteran in July 2009. The letter notified the Veteran of what information and evidence must be submitted to substantiate claims of service connection, and for earlier effective dates, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claims to the RO. The July 2009 letter also provided the Veteran with notice of the laws regarding degrees of disability or effective dates. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The July 2009 letter was sent before the initial adjudication of the claims in August 2009; thus, the notice was timely. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. Therefore, the Board finds the duty to notify provisions of VCAA have been fulfilled. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. The Veteran's service treatment records were obtained and associated with the claims folder. The VA treatment records were obtained and associated with the claims folder. His private treatment records from his disability retirement from his prior employment were also obtained and associated with the claims folder. In July 2009, the Veteran informed the RO that he had no additional information to submit. There is no identified relevant evidence that needs to be obtained. A VA examination to obtain a medical opinion as to the issue of service connection for bilateral pes planus has not been performed in this case. However, such additional action is not indicated. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed, there is no competent and credible evidence that the Veteran has bilateral pes planus that is associated to service or other service-connected disability. Thus, the Board finds that there is no reasonable possibility that further assistance in the form of an examination with medical opinion would aid in substantiating any of this claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria-Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. A continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis-Service Connection To establish service connection for bilateral pes planus, the Veteran must show affirmatively that he has the disease, and the disease is related to his active service or to other service-connected disability. There is no evidence of a diagnosis of pes planus in service. The March 1970 separation examination report indicates that the Veteran had normal feet at the time of his discharge from active duty. The Veteran indicated on a Report of Medical History completed in April 1970 that he did not have foot trouble. Pes planus was not detected or diagnosed upon VA examination in May 1970. Subsequent private and VA Medical Center treatment records are negative for any signs, symptoms, or diagnoses of pes planus. A September 1994 VA treatment record reflects that the Veteran was treated for blisters on his feet; no mention was made of pes planus. A May 1997 VA examination report makes no mention of complaints or diagnosis of pes planus. A June 2009 VA examination report indicates that examination of the feet was normal with the exception of severe toenail infection and mild tinea pedis. During his July 2011 Board hearing, the Veteran remarked that he received treatment for pes planus at the VA Medical Center. He said that he received treatment for pes planus from "Dr. Bonk." A careful review of the Veteran's VA treatment records is negative for any treatment from a "Dr. Bonk." However, the VA treatment records reflect that the Veteran has received treatment from a "Dr. Hong." According to the VA treatment records, Dr. Hong works in the neurosurgical department, and he has recorded the Veteran's complaints of numbness down his left posterior leg. However, while the Veteran has received treatment for radiculopathy, none of the records from Dr. Hong reflect treatment for pes planus. The Veteran has complained of bilateral foot pain, and such pain is confirmed in medical records, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability...in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no medical evidence showing that bilateral pes planus has been present at any time during the pendency of the claims. The Veteran has not shown a current disorder for which service connection can be granted on either a direct or a secondary basis. The Veteran's own assertions that he has pes planus that is related to service or to his lumbar spine disorder are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. The Veteran as a layperson is competent to report observable symptoms, such as foot pain. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds that the Veteran's statements are credible because the statements are internally consistent. However, the Veteran is not competent as a layperson to offer an opinion concerning a medical diagnosis. He has not offered any medical qualifications. The question of diagnosis and etiology of a disability is not amenable to observation alone and is too complex to be addressed by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., the condition is simple, for example, a broken leg); (2) a layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In the present case, a layperson is not competent to diagnosis pes planus and this disability has not been diagnosed at any time by a medical professional. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for bilateral pes planus on either a direct or secondary basis. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for bilateral pes planus is denied. Law and Regulations-Earlier Effective Date Claims Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Specifically as regards claims for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Analysis-PTSD In this case, service connection for "anxiety reaction" was originally granted in a July 1970 rating decision. This decision established a disability rating of 30 percent, effective April 2, 1970, the day following the Veteran's discharge from active duty. In January 1996, the Veteran filed a claim for an increased rating for his service-connected anxiety. In a May 1996 RO decision, an increased rating was denied. The Veteran filed a notice of disagreement in July 1996. In an October 1996 decision, the RO "reopened" the Veteran's claim for an increased rating for anxiety and denied the "reopened" claim on the merits. In October 1997, the Veteran requested that the RO reclassify his service-connected anxiety as PTSD and grant him an increased rating. In a June 1998 decision, the RO reclassified the Veteran's service-connected anxiety as service-connected PTSD with anxiety and continued the 30 percent disability rating. In February 1999, the Veteran indicated in a written statement that a grant of a disability rating of 50 percent for his PTSD would constitute "a full grant of my appeal." In a February 1999 RO decision, the Veteran was granted a 50 percent disability rating for PTSD. The rating decision sent to the Veteran indicated that in accordance with the Veteran's February 1999 statement, the decision constituted a full grant of the benefits sought on appeal; as such, the appeal was considered withdrawn and no further action would be taken. The Veteran was notified of this decision in February 1999 and he did not perfect an appeal of that decision. Consequently, the February 1999 decision became final. The next communication received from the Veteran was a March 2001 request for an increased rating for his PTSD. In a February 2004 RO decision, the Veteran was granted a 70 percent disability rating for PTSD, effective March 6, 2001. The Veteran has not disagreed with the disability rating of 70 percent for PTSD; he has asserted that the effective date for the establishment of the 70 percent rating should be December 1996. However, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable. As noted above, in a February 1999 RO decision, the Veteran was granted a 50 percent disability rating for his PTSD. The Veteran indicated in a February 1999 statement that the granting of the 50 percent disability rating satisfied his appeal concerning an increased rating for his PTSD. He did not perfect an appeal. As such, that decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The finality of the RO's February 1999 decision precludes an effective date prior to that date. The Veteran is prohibited from collaterally attacking the prior final February 1999 rating decision by filing a freestanding earlier effective date claim. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. 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. See Rudd, 20 Vet. App. 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 Board notes that the finality of the February 1999 decision could be vitiated by a finding of clear and unmistakable (CUE) in that decision. See Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates). However, no such claim has been raised here. A CUE claim requires some degree of specificity not only as to what the alleged error is, but as to how it is the kind of error that, if true, would constitute CUE on its face; persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Here, the arguments of the Veteran and his representative do not actually allege CUE, much less, reflect the type of specificity need to sufficiently raise such a claim. The Board also notes that there is no document dated between the February 1999 final decision and the March 6, 2001 claim for increase reflecting the Veteran's intent to file a claim for increased rating for his service-connected PTSD. In fact, VA received no submissions whatsoever from the Veteran from this time period. The Board further points out that there is otherwise no evidence during the one-year period prior to the filing of the March 6, 2001 claim to support assignment of a higher, 70 percent disability rating. In this matter, the Board has carefully considered the VA treatment records and medical evidence for the year prior to the Veteran's March 2001 claim for an increased rating and finds that it is not factually ascertainable that an increase in disability had occurred prior to March 6, 2001. A VA treatment note from March 2000 reflects that the Veteran experienced nightmares every other week and flashbacks about once per week. The Veteran reported feeling "a little depressed," and the examiner wrote that the Veteran denied experiencing auditory or visual hallucinations, although he experienced the sensation of bugs crawling on his skin. Some psychomotor retardation was exhibited, but the Veteran exhibited no abnormal movements. The Veteran's speech was deemed logical and coherent with a normal rate. No suicidal or homicidal thoughts were present. The examiner assigned a GAF score of 60 to 65. The Court has held that Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. DSM-IV. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). DSM-IV. A VA follow-up record from September 2000 reflects that the Veteran reported decreased jitteriness and les anger. The note indicates that the Veteran had a good relationship with his wife. He experienced continuing nightmares and flashbacks. The examiner found no psychomotor retardation or abnormal movements. The Veteran's speech was logical and coherent. No tactile, auditory, or visual hallucinations, or suicidal or homicidal ideation was reported. The examiner assigned a GAF score of 60 to 65 which is indicative of mild to moderate difficulty in social, occupational, or school functioning. See DSM-IV. On VA follow-up in January 2001, the Veteran reported that he was continuing work on remodeling a house. He said that his wife noticed that he was calmer and had less anger. It was noted that the Veteran had a good relationship with his wife and denied having a depressed mood. Nightmares and flashbacks persisted. The examiner felt that the Veteran was calm, cooperative, and displayed no psychomotor retardation or abnormal movements. No tactile, auditory, or visual hallucinations were reported. No suicidal or homicidal thoughts were presented. The examiner recorded no evidence of delusions or obsessional thinking. The examiner assigned a GAF score of 65 to 70 which is indicative of mild difficulty in social, occupational, or school functioning. See DSM-IV. The Board is mindful that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, for the year prior to March 2001, the objective medical evidence does not reflect or more closely approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood due to the PTSD symptoms, which is the criteria for a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The Board notes that at one point, the records reflect that the Veteran experienced tactile hallucinations. However, that symptom only appeared on one treatment record, and generally speaking, the other treatment records for the time in question show that the Veteran was resolving issues dealing with anger and depression. Additionally, the record contains GAF scores of 60 to 70 for this time period. These scores indicate mild to moderate social and occupational impairment, not occupational and social impairment with deficiencies in most areas. The Board finds that the criteria for a 70 percent rating for the service-connected PTSD has not been shown by the evidence of record for the year prior to March 2001. In sum, prior to the filing of the March 6, 2001 claim for increase, there was no pending claim pursuant to which a higher rating could have been granted, or evidence during the one-year period prior to that date from which it is factually ascertainable that an increase in disability to a level greater than 50 percent had occurred for PTSD. The Board again emphasizes that the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the award of 70 percent rating for PTSD earlier than March 6, 2001 is assignable and the claim on appeal must be denied. Scar of the Left Forearm In this case, in April 1970, the Veteran applied for service connection for a "wounded left arm." In a July 1970 decision, the RO discussed the Veteran's "mildly symptomatic" scar on his left forearm with retained shrapnel. In that decision, service connection was established for residuals of a shell fragment wound of the left forearm. A disability rating of 10 percent was established, effective April 2, 1970, the date following the Veteran's release from active duty. On October 15, 1997, the Veteran requested an increased rating for his service connected shell fragment wound, left arm. In a June 1998 rating decision, the RO continued a 10 percent disability rating for residuals of the shell fragment wound to the left forearm and granted a separate 10 percent disability rating for the scar, effective October 15, 1997. The Veteran was notified of the decision in July 1998. At an April 2006 Board hearing, the Veteran and his representative raised the issue of entitlement to an earlier effective date for the award of the separate 10 percent rating for the scar on his left forearm. The Veteran has argued that he is entitled to an earlier effective date for the award of the separate 10 percent rating for the scar on his left forearm, though he did not provide any specific assertions as to why he believes that he is entitled to an effective date earlier than October 15, 1997. However, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable. In Rudd v. Nicholson, the Court held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed RO decision. See Rudd, 20 Vet. App. 296, 299-300 (2006). The Court reasoned that allowing such claims would vitiate the rule of finality. Id. at 300. The proper way to assert error in a final decision would be through an allegation that the March 2004 rating decision contained CUE. 38 U.S.C.A. § 5109A; see Moody v. Principi, 360 F.3d 1306, 1309 (Fed.Cir.2004). A claim alleging CUE in the prior June 1998 decision has not been raised or adjudicated. A CUE claim requires some degree of specificity not only as to what the alleged error is, but as to how it is the kind of error that, if true, would constitute CUE on its face; persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Here, the arguments of the Veteran and his representative do not actually allege CUE, much less, reflect the type of specificity need to sufficiently raise such a claim. Here, the current claim for entitlement to an earlier effective date for the award of the separate 10 percent rating for the scar on his left forearm was raised after the June 1998 decision became final as to the assigned effective date. Accordingly, the current claim for an earlier effective date for the award of the separate 10 percent rating for the scar on his left forearm is a free-standing earlier effective date claim. In Rudd, the Court held that the proper disposition of a free-standing claim for an earlier effective date claim was dismissal. Id. The Board is authorized to dismiss any appeal that fails to allege an error of fact or law. 38 U.S.C.A. § 7105(d) (5); 38 C.F.R. § 20.302. Accordingly, this appeal is dismissed. ORDER The appeal for entitlement to service connection for bilateral pes planus is denied. The appeal for entitlement to an effective date prior to March 6, 2001 for the award of a 70 percent disability rating for service-connected PTSD is denied. The appeal for entitlement to an effective date prior to October 15, 1997 for a separate 10 percent disability rating for a service-connected scar of the left forearm is dismissed. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs