Citation Nr: 1324659 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 05-02 187 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than May 7, 1997, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2003 rating decision in which the RO denied the Veteran's claim for an effective date earlier than June 11, 1998, for the award of service connection for PTSD. In April 2003, the Veteran filed a notice of disagreement (NOD). By rating decision in January 2004, the RO granted an earlier effective date of May 7, 1997, for the award of service connection for PTSD (the date of the Veteran's claim for compensation). A statement of the case (SOC) was issued in December 2004, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2005. In September 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In a February 2011 decision, the Board denied an effective date earlier than May 7, 1997, for the award of service connection for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Memorandum Decision, the Court vacated the February 2011 Board decision, and dismissed the appeal. Because the February 2011 Board decision was vacated, the matter on appeal has been returned to the Board. FINDINGS OF FACT 1. In an October 2000 rating decision, the RO awarded service connection for PTSD, effective June 11, 1998. Although notified of the decision, and of his appellate rights, the Veteran did not appeal any aspect of the October 2000 rating decision. 2. In January 2003, correspondence in which the Veteran alleged his entitlement to an earlier effective date for the award of service connection for PTSD was forwarded to the RO. 3. In a January 2004 rating decision, the RO assigned an earlier effective date of May 7, 1997 (the date of claim), for the award of service connection for PTSD. CONCLUSION OF LAW As the Veteran's claim for an effective date earlier than May 7, 1997, for the award of service connection for PTSD is a freestanding claim over which the Board does not have jurisdiction, the claim must be dismissed. 38 U.S.C.A. § 7105(c) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). For reopened claims, the effective date is also generally the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). A challenge to an RO assignment of an effective date may be made through a direct appeal of that RO decision, beginning with the timely filing of a notice of disagreement (NOD), and completed by the filing of a substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). The NOD must be in writing and filed within one year "from the date of mailing of notice of the result of initial review or determination." 38 U.S.C.A. § 7105(b)(1); see Rowell v. Principi, 4 Vet. App. 9, 17, (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). An NOD is "[a] written communication from a claimant ... expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result." 38 C.F.R. § 20.201 (2012). When a claim is denied by the RO, and the claimant fails to file an NOD within the one-year period following the decision, that decision becomes final and the claim may not "thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with" title 38 of the United States Code. See 38 U.S.C.A. § 7105. See also DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded."); Person v. Brown, 5 Vet. App. 449, 450 (1993) (failure to timely appeal an RO decision within the one-year period renders the decision final). The basic facts pertinent to this appeal are not in dispute. The claims file reflects that the Veteran originally filed a claim for service connection for a psychiatric disorder in 1982, that the RO denied the claim, and that he pursued subsequent attempts to establish entitlement to service connection for psychiatric impairment. Ultimately, in an October 2000 rating decision, the RO awarded service connection for PTSD, effective June 11, 1998. Through correspondence dated in November 2000, the RO notified the Veteran of the award, furnishing him with a copy of the rating decision, and a VA Form 4107 explaining his rights to appeal. The Veteran did not appeal any aspect of the October 2000 rating decision, to include the initial rating assigned, or the effective date of the award. In January 2003, correspondence in which the Veteran alleged his entitlement to an earlier effective date for the award of service connection for PTSD was forwarded to the RO. In a January 2004 rating decision, the RO assigned an earlier effective date of May 7, 1997 (the date of claim), for the award of service connection for PTSD. As noted in the Court's Memorandum Decision, in Rudd v. Nicholson, 20 Vet. App, 296 (2006), it was held that VA claimants 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. 20 Vet. App. at 300. If an RO decision assigning an effective date has become final, a claimant may pursue only limited types of challenges to that decision, such as a motion asserting clear and unmistakable error in a prior decision. See DiCarlo, 20 Vet. App. at 56-57 (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed.Cir. 2002) (en banc) (same). In this case, as no aspect of the RO's October 2000 rating decision awarding service connection for PTSD was not appealed, that decision-and all of its components, to include the effective date of the award-is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. As such, and consistent with Rudd, the Court held that neither the RO, nor the Board, had jurisdiction to adjudicate the merits any subsequently-received claim for an earlier effective date for the award of service connection for PTSD. In other words, even though, in the January 2004 rating decision, the RO assigned an earlier effective date of May 7, 1997 (the date of claim), for the award of service connection for PTSD, for the reasons stated, VA has no authority, at this juncture, to adjudicate any claim of entitlement to an even earlier effective date for that award. The Board again points out, as mentioned above, that the finality of the October 2000 decision could be vitiated by a finding of clear and unmistakable error (CUE) in that decision. See Routen v. West, 142 F.3d 1434, 1438 (Fed.Cir. 1998). A claim of CUE requires not only some degree of specificity as to what the alleged error is, but also-unless it is the kind of error that, if true, would constitute CUE on its face-persuasive reasons 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). No such claim has been raised here. Accordingly, a dismissal of the claim for an effective date earlier than May 7, 1997, for service connection for PTSD, as essentially directed by the Court, is appropriate. The Board is bound by the Court's determination under the law of the case doctrine. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). ORDER The claim for an effective date earlier than May 7, 1997, for service connection for PTSD is dismissed. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs