Citation Nr: 1322273 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-46 528A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date prior to June 15, 2005, for the grant of service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Esq. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD)/depressive disorder. In February 2008, the Veteran submitted a notice of disagreement (NOD) and subsequently perfected his appeal in December 2009. His case is currently under the jurisdiction of the VA RO in New Orleans, Louisiana. In June 2011, the Board held the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for PTSD in abeyance so that the RO could adjudicate the Veteran's November 2012 motion for revision of the April 1978 rating decision based on clear and unmistakable error (CUE) before readjudicating his earlier effective date claim. Thereafter, by a rating action dated in February 2013, the RO denied the Veteran's CUE motion and informed the Veteran of the denial and his appellate rights. The Veteran filed an NOD in February 2013 and the RO sent him a statement of the case in April 2013. The Veteran has yet to submit a VA Form 9 (Substantive Appeal) to perfect his appeal. As such, the CUE motion is not currently before the Board. Following the February 2013 adjudication of the Veteran's CUE motion, the RO readjudicated the Veteran's earlier effective date claim in a February 2013 supplemental statement of the case. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT In a June 2006 rating decision, service connection was granted for PTSD, effective June 15, 2005; and, as the Veteran did not file a timely appeal as to the effective date of this grant of service connection, the decision became final. CONCLUSION OF LAW The Veteran's claim of entitlement to an effective date earlier than June 15, 2005, for the grant of service connection for PTSD is dismissed. 38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. §§ 20.1103 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In light of the United States Court of Appeals for Veterans Claims (Court's) decision in Rudd v. Nicholson, 20 Vet. App. 296 (2006), and the dismissal of this appeal, the Board observes that the law, and not the evidence, is dispositive of the Veteran's claim. See Valioa v. Principi, 17 Vet.App. 299 (2003); Sabonis v. Brown, 6 Vet App 426, 430 (1994). Any deficiencies in VCAA notice are moot and the Board need not address them. See VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). II. Merits of the Claim At the outset, and as referenced above, the Veteran's earlier effective date claim was held in abeyance so that the RO/AOJ could adjudicate his claim that there was CUE in an earlier decision that had denied reopening a claim for service connection for a nervous disorder. The earlier effective date claim was considered to be inextricably intertwined with the claim for CUE. The appeal period for the Veteran's CUE motion has not expired. However, on further review and consideration, the Board finds it may proceed to a decision of entitlement to an earlier effective date for the grant of service connection for PTSD, notwithstanding the pending appeal for the denial of revision based on CUE in the April 1978 rating decision declining to reopen a previously denied claim for service connection for a nervous condition. Further delay in adjudicating the earlier effective date claim is not deemed necessary. Indeed, the Court has itself bifurcated and separately adjudicated the issues of entitlement to an earlier effective date and CUE based on the same contentions. Canady v. Nicholson, 20 Vet. App. 393, 402 (2006). The Board regrets any confusion that its Remand may have caused along with the associated delay. Generally, 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 later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that the appeal should be dismissed. In September 1970, the Veteran filed a claim of entitlement to service connection for severe depressive reaction. An April 1971 rating decision denied service connection for a nervous condition. The Veteran filed a February 1972 NOD, but did not perfect an appeal following the issuance of an October 1972 statement of the case and the decision became final. In September 1977, a letter from the Veteran's mother was deemed a petition to reopen the Veteran's previously denied claim of entitlement to service connection for a nervous condition. An April 1978 rating decision declined to reopen the previously denied claim for service connection for a nervous condition. He did not appeal the RO's decision nor did he submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b). The decision became final one year later (April 1979). In June 2005, the Veteran filed another petition to reopen his previously denied claim of entitlement to service connection for a nervous condition. In a June 2006 rating decision, he was granted entitlement to service connection for PTSD. A 70 percent disability rating was assigned, effective from June 15, 2005. Notice of the decision was provided on July 7, 2006. The Veteran did not appeal any aspect of this rating decision, including the effective date for the grant of service connection. Further, while additional evidence was received with respect to a claim for a total disability evaluation based on individual unemployability, none of those records would have necessitated a reconsideration of the assigned effective date. See 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011), the Federal Circuit found that § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. See also Buie v. Shinseki, 24 Vet. App. 242 (2010). The June 2006 rating decision thereby became final with respect to the effective date of the grant of service in July 2007, which is one year after the Veteran was notified of the decision. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Thereafter, by a rating action dated in December 2006, the 70 percent rating assigned to the Veteran's service connected PTSD was increased to 100 percent, effective from June 15, 2005. In August 2007, the Veteran submitted a written statement wherein he argued that the effective date of the 100 percent rating assigned to his PTSD should have been earlier. He argued that he originally filed his claim in November 1970, and that the award should have been made retroactive to that date. His attorney has subsequently clarified that the Veteran was seeking an earlier effective date for the grant of service connection for PTSD. See Statement from attorney dated February 11, 2008. However, if the Veteran believed that the effective date for the grant of service connection for PTSD in the RO's June 2006 rating decision was incorrect, his proper recourse was to file an NOD specifically regarding the effective date assigned within one year of being notified of the decision. He did not file such an NOD as to the effective date of the grant of service connection. The June 2006 rating decision thereby became final. The Board again notes that the Veteran may still perfect his appeal with respect to the argument that there was CUE in the April 1978 rating decision that declined to reopen the previously denied claim for service connection for a nervous condition. The Board further observes that the RO developed this matter on its merits rather than dismissing it as not timely filed. There was apparently some confusion concerning whether earlier effective date claims could be raised at any time, notwithstanding the clear meaning of the law and VA regulations. Any such confusion has, however, been dissipated by the Court's decision in Rudd. In that decision, the Court essentially stated that a "freestanding" earlier effective date claim could not be raised after an RO decision became final. See Rudd, supra. The Court further indicated that such a claim should be dismissed. In light of the Veteran's failure to appeal the effective date of the grant of service connection for PTSD following the June 2006 rating decision and the Court's ruling in Rudd, discussed above, the August 2007 freestanding earlier effective date claim must be dismissed. See VAOPGCPREC 9-99 (indicating that the Board may dismiss any appeal which is not timely filed). The Board notes that the December 2006 rating decision increased the Veteran's disability rating for PTSD from 70 percent to 100 percent effective June 15, 2005. The Veteran's claim as to the effective date for the grant of service connection was received by VA within one year of this rating decision and may be considered a timely NOD to this rating decision. However, the December 2006 rating decision did not grant service connection, nor did the Veteran submit any documentation between the issuances of the June 2006 and December 2006 rating decisions to indicate that he was appealing the effective date assigned for the grant of service connection. Rather, the December 2006 increase in the Veteran's PTSD evaluation was in response to medical evidence received during the RO's development and adjudication of a claim for a total disability rating based on individual unemployability due to service-connected disabilities. As this rating decision did not grant service connection or assign or change the effective date for the grant of service connection for PTSD, it did not affect the finality of the June 2006 rating decision assigning an effective date of June 15, 2005 for the grant of service connection. As the Veteran did not file a timely NOD as to this rating decision, his claim for an earlier effective date must be dismissed. ORDER The Veteran's claim of entitlement to an effective date prior to June 15, 2005 for the grant of service connection for PTSD is dismissed. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs