Citation Nr: 1334480 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-23 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than July 19, 1995, for the award of service connection for (posttraumatic stress disorder) PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran submitted a notice of disagreement in December 2006, and a statement of the case was issued in July 2008. The Veteran perfected his appeal in August 2008. In November 2012, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. At the hearing, the Veteran alleged clear and unmistakable error (CUE) in a July 2005 Board decision. That is a separate issue than the one being decided in this decision. The Veteran will receive a letter that informs him of the applicable statute and rule when alleging CUE in a Board decision, and allows him and/or his representative 60 days to provide argument in connection with this claim. This issue will be decided in a separate decision after due process has been provided to the Veteran. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT In a July 2005 decision, the Board denied entitlement to an effective date earlier than July 19, 1995, for the award of service connection for PTSD. The decision is final. CONCLUSION OF LAW The Veteran's claim of entitlement to an effective date earlier than July 19, 1995, for the award of service connection for PTSD must be dismissed. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §3.400 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an earlier effective date for the award of service connection for PTSD. Specifically, he is seeking an effective date of 1987, which is when he states he was first diagnosed with PTSD. See Board hearing transcript. The Veteran was awarded service connection for PTSD in an August 2001 rating decision and assigned an effective date of November 6, 1996. In August 2002, the Veteran submitted a statement alleging he warranted an earlier effective date for the award of service connection for PTSD. In November 2002, the RO denied an earlier effective date, but then in a March 2003 rating decision, it found that an earlier effective date of July 19, 1995, was warranted for the award of service connection for PTSD. In August 2003, the Veteran submitted a notice of disagreement, stating he warranted an even earlier effective date. He perfected an appeal, and in a July 2005 decision, the Board denied entitlement to an effective date earlier than July 19, 1995, for the award of service connection for PTSD. There is no indication that the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thus, the July 2005 Board decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). In November 2005, the Veteran submitted a claim for an earlier effective date through his Senator. See 38 C.F.R. § 3.155(a) (2012) (informal claim may be submitted by Member of Congress). In September 2006, the RO denied an earlier effective date, and this appeal ensued. At the November 2012 hearing before the undersigned, the Veteran stated he should be awarded service connection for PTSD as of 1987, as he was diagnosed with PTSD at that time at a VA Medical Center. He alleged he had submitted a claim for service connection for a psychiatric disorder as early as 1973, but that PTSD was first diagnosed in 1987. The Veteran alleged there was CUE in the July 2005 Board decision. As noted in the Introduction, that issue will be addressed in a separate decision in the future. After having carefully reviewed the evidence of record, the Board finds that the Veteran's claim for an earlier effective date for the award of service connection for PTSD must be dismissed. The July 2005 Board decision is final. If the Veteran felt that he was still entitled to an earlier effective date, he could have filed an appeal to the Court. There is no indication in the record that the Veteran appealed the Board's July 2005 decision, and neither the Veteran nor his representative has alleged such. Case law emphasizes that once there is a relevant final decision on an issue, there cannot be a "freestanding claim" for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006); see Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc); see also Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). In Rudd, the Court held that a claimant can attempt to overcome the finality of a decision in an attempt to gain an earlier effective date either by way of a request for revision of the decision based on clear and unmistakable error (CUE), or by a claim to reopen based upon new and material evidence. Rudd, 20 Vet. App. 296. However, in Leonard v. Nicholson, the United States Court of Appeals for the Federal Circuit noted that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard, 405 F.3d at 1336-37 (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). The only way the Veteran in this case could attempt to overcome the finality of the July 2005 Board decision is to request a revision of the decision based on CUE, which he has done, and this issue will be addressed in a separate decision after allowing the Veteran due process rights. Thus, at this time, the Veteran is legally and factually precluded from receiving an effective date earlier than July 19, 1995, for the award of service connection for PTSD. As noted above, the Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than July 19, 1995, for the award of service connection for PTSD is dismissed. _______________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs