Citation Nr: 1327223 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-17 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for hepatitis C, currently evaluated as 30 percent disabling. 2. Entitlement to an earlier effective date prior to April 27, 1995, for the grant of service connection for posttraumatic stress disorder (PTSD). 3. Whether the RO committed clear and unmistakable error (CUE) in an August 1975 rating decision that denied entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from July 1972 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2011, the Board remanded the case to schedule the Veteran for a Board hearing. In June 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. At the hearing, the record was held open for 30 days from the date of the hearing in which the Veteran could submit additional evidence. Later that month, the Veteran's representative submitted additional evidence in the form of a letter from a VA treatment provider. In July 2011, the Veteran's representative waived review of the newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran's hepatitis C has resulted in signs and symptoms of daily fatigue and malaise, with minor weight loss and hepatomegaly. Substantial weight loss or other indication of malnutrition, incapacitating episodes, or near-constant debilitating symptoms has not been shown. 2. The RO's determination of the effective date for the award of service connection for PTSD with a 100 percent rating was subsumed by the Board's April 2002 decision; a freestanding claim for an earlier effective date is precluded. 3. The April 2002 Board decision considered the Veteran's present theories of CUE in the August 1975 RO rating decision; his CUE challenge has already been addressed by the Board and he is precluded from challenging the original RO determination as containing CUE in this manner. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for service-connected hepatitis C have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.112, 4.114, Diagnostic Codes 7354 (2012). 2. The Board lacks jurisdiction to address the appeal of the issue of entitlement to an earlier effective date prior to April 27, 1995, for the grant of service connection for PTSD. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1104 (2012); Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). 3. The Board lacks jurisdiction to address the appeal of the issue of whether the RO committed CUE in an August 1975 rating decision that denied entitlement to service connection for a psychiatric disorder. Hillyard v. Shinseki, 695 F.3d 1257, 1260 (Fed. Cir. 2012); Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Hepatitis C Rating A. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased evaluations for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a evaluation will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores, 580 F.3d at 1270. The notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini, 18 Vet. App. at 112. In a letter from the RO dated in April 2009, the Veteran was told that to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. He was provided the rating criteria for evaluating hepatitis C under the diagnostic code for that disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores, 22 Vet. App. at 37. The April 2009 letter also provided notice of how VA determines disability ratings and effective dates as per the holding in Dingess. The letter also advised the Veteran what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The letter also informed him what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. The letter also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. Specifically, the Veteran was informed in the letter of types of evidence that might show such a worsening, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. Finally, the letter was provided prior to the adjudication of the claim by the AOJ. Consequently, further notification of how to the claim is not necessary. The duty to assist was also met in this case. The available service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. Additionally, a VA examination with respect to this claim was obtained in November 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board specifically finds that the VA examination report obtained from the examiner in this case is adequate as it was based on physical examination and review of the Veteran's complete VA claims file, and it provides medical information needed to address the rating criteria relevant to this case. In particular, the VA examination report contains a description of the symptomatology related to the service-connected hepatitis C and addresses the impact of the disability on the Veteran's employment and daily life. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to this issue has been met. 38 C.F.R. § 3.159(c)(4). Further, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95 (Apr. 7, 1995). Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. B. Analysis Evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the evaluation is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran was granted service connection for hepatitis C in February 1999. An initial rating of 30 percent was awarded effective December 16, 1997. The present appeal arises from a claim for increase submitted by the Veteran in April 2009. The Veteran's hepatitis C is currently evaluated under Diagnostic Code 7354 for evaluating "hepatitis C." This diagnostic code did not exist when he was initially awarded service connection and a 30 percent evaluation is not now listed in the diagnostic code. A readjustment to the Schedule of Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. See 38 C.F.R. § 3.951. Although the RO denied the present claim for increase, the Veteran's hepatitis C continued to be rated as 30 percent disabling. Under Diagnostic Code 7354, when there is serologic evidence of hepatitis C infection, a noncompensable (zero percent) rating is warranted when nonsymptomatic. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia with minor weight loss and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is assigned for daily fatigue, malaise, and anorexia with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. Following the rating criteria, Note (1) directs to evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. Note (2) provides that, for purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. Additionally, the regulations define "substantial weight loss" as a weight loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. "Minor weight loss" is defined as a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. "Baseline weight" is defined as the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. Through submitted statements and hearing testimony, the Veteran contends that a higher rating is warranted because he experiences most of the listed symptoms, including serologic evidence of hepatitis C, daily fatigue, daily malaise, hepatomegaly, arthralgia, right upper quadrant pain, and weight loss of 20 pounds. He acknowledges that he does not experience anorexia. In consideration of the evidence of record and the rating criteria, the Board first finds that the evidence does not show that the Veteran has experienced incapacitating episodes resulting from his hepatitis C. VA treatment records and the November 2009 VA examination reflect treatment for hepatitis C, but the records are devoid of an indication that the Veteran has required bed rest due to the disease. Moreover, the Veteran has not stated that he has had bed rest due to his hepatitis C. Although the Veteran experiences symptoms of arthralgia and right upper quadrant pain, an incapacitating episode for VA purposes has a specific definition, which has not been met. Therefore, a higher rating is not warranted under the incapacitating episodes aspect of Diagnostic Code 7354. The Board will next consider the signs and symptoms portion of the criteria, which is the primary method for evaluating hepatitis C. See 66 Fed. Reg. 29486, 29487-88 (May 31, 2001) ("The criteria based on incapacitating episodes . . . will be used infrequently. . . . [M]ost veterans will be rated on the basis of the signs and symptoms of liver disease."). As to the signs and symptoms criteria, the record contains serologic evidence of hepatitis C as the VA treatment records document laboratory tests revealing such evidence. Each of the rating evaluations for hepatitis C from 10 percent to 60 percent list fatigue, malaise, and anorexia. See 38 C.F.R. § 4.114, Diagnostic Code 7354 (emphasis added). Inclusion of the word "and," rather than "or," indicates that the list of symptoms may be conjunctive in nature. If so, the 10 percent rating would require the symptom of anorexia, even if only intermittent in nature. See Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007) (holding that all the criteria for a 40 percent rating for diabetes mellitus must be met given the clearly conjunctive language used in specifying the criteria under Diagnostic Code 7913). Even when a conjunctive "and" is present in the rating criteria, all the criteria need not necessarily be met if the diagnostic code does not involve successive criteria. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (holding that it is not necessary that all the criteria for a 30 percent rating for hypothyroidism be met because Diagnostic Code 7903 does not involve successive rating criteria). Section 4.7 would then be implicated. Id. In assessing the rating criteria for hepatitis C in the context of Camacho and Tatum, the Board interprets the rating criteria from 10 to 60 percent as both non-successive and successive in nature. The signs and symptoms pertaining to fatigue, malaise, and anorexia are non-successive because each evaluation lists the symptoms and only the zero percent rating for nonsymptomatic hepatitis C does not. If the symptoms were successive aspects of the rating criteria and all were necessary, then severe symptoms would be rated as equivalent to nonsymptomatic hepatitis C if only one or two of the three symptoms were evident. Additionally, the 100 percent rating does not require anorexia. It requires near-constant debilitating symptoms of which anorexia is only an example. Instead, the Board finds that 38 C.F.R. § 4.7 is applicable to this aspect of the rating criteria in that it is necessary to determine whether the symptoms of hepatitis C more closely approximate the symptoms of fatigue, malaise, and anorexia, or the lesser nonsymptomatic hepatitis C. Then, the rating criteria become successive in that the next higher rating beginning with the 10 percent rating requires the elements for the lower rating. That is, the 20 percent rating requires daily symptoms rather than intermittent. The 40 percent rating requires minor weight loss and hepatomegaly rather than without those symptoms, and the 60 percent rating requires substantial weight loss or other indication of malnutrition rather than minor weight loss. With this in mind, the Board finds that the evidence shows that the Veteran experiences fatigue and malaise. VA treatment records from 2008 and 2009 note fatigue, as does the November 2009 VA examination report and a June 2011 letter from the Veteran's treating VA nurse practitioner. Additionally, the Veteran has stated and testified that he experiences fatigue and malaise, symptoms of which he is competent to attest to experiencing as they are observable symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds no reason to doubt the credibility of the Veteran's statements and testimony as to those symptoms. The evidence does not show that the Veteran experiences anorexia as the VA treatment records and examination report are devoid of evidence of that symptom. In fact, he has been assessed as obese and he has denied experiencing anorexia. Nevertheless, under 38 C.F.R. § 4.7, the Board finds that the Veteran's hepatitis C more closely approximates fatigue, malaise, and anorexia, rather than nonsymptomatic hepatitis C. As to the successive criteria in Diagnostic Code 7354, the Board finds that the Veteran's symptoms of fatigue and malaise are daily rather than intermittent. Significant daily fatigue is noted in an October 2009 VA treatment record. In the June 2011 letter, the VA nurse practitioner indicated that the Veteran had daily persistent fatigue worsening over the last couple of years. Therefore, the evidence reflects daily signs and symptoms, which is a necessary element for the 20, 40, and 60 percent rating. Next, the Board will address whether the Veteran's hepatitis C symptoms include minor weight loss and hepatomegaly. His heaviest weight was recorded as 285 pounds in 2007. Affording the Veteran the benefit of the doubt by using that weight as his baseline weight, he had weight loss down to as low as 264 pounds in 2009. There is some question as to whether the weight loss is attributable to his hepatitis C in view of his obesity and evidence in the VA treatment records of a recommendation to lose weight. Nevertheless, the Board will attribute the weight loss of just over 7 percent to the Veteran's hepatitis C. As noted previously, "minor weight loss" is defined as a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. Although the Veteran's weight loss does not quite reach this level, the Board will resolve reasonable doubt in his favor and find that his weight loss approximates "minor weight loss." Hepatomegaly is evident in an earlier July 2006 VA treatment record. More recently, VA treatment records and the November 2009 VA examination report note that the Veteran has a distended abdomen. Resolving reasonable doubt in his favor, the Board finds that he has hepatomegaly resulting from his hepatitis C. Therefore, the evidence shows minor weight loss and hepatomegaly, which are necessary elements for the 40, and 60 percent rating. Accordingly, a higher rating is warranted for the Veteran's hepatitis C. The rating criteria for a 40 percent rating have been met for the entire rating period on appeal. As to a 60 percent rating, substantial weight loss or other indication of malnutrition is necessary. Daily fatigue, malaise, anorexia, and hepatomegaly are all already contemplated by the lesser rating. As noted previously, "substantial weight loss" is weight loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. The Board described the Veteran's weight loss above and it does not approach "substantial weight loss." If fact, it was necessary for the Board to resolve reasonable doubt in the Veteran's favor for the weight loss to even be considered "minor weight loss." At his hearing, the Veteran indicated that he had about 20 pounds of weight loss, which is consistent with the type of weight loss described above. Furthermore, the evidence does not suggest that the Veteran experiences another indication of malnutrition and he has not contended as much. Consequently, the rating criteria for a 60 percent rating have not been met because the evidence does not show that the Veteran's hepatitis C has resulted in substantial weight loss or other indication of malnutrition. Lastly, although the evidence shows that the Veteran experiences the type of symptoms listed for a 100 percent rating, the evidence does not show that they are near-constant debilitating symptoms. In the VA treatment records and VA examination report, the severity of some symptoms are characterized as moderate and the VA examiner stated that there is no objective evidence of progression of the disease. Moreover, although the Veteran is seen by VA for consultation for his hepatitis C, he does not receive any treatment. Thus, the rating criteria for a 100 percent rating have not been met. In sum, the Board concludes that a higher rating is warranted for the Veteran's service-connected hepatitis C-to 40 percent, but no higher. The preponderance of the evidence is against a higher rating. This is so during the entire rating period on appeal. See Hart, 21 Vet. App. at 505 (2007). The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's hepatitis C has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The symptoms of his disability (fatigue, malaise, hepatomegaly, arthralgia, right upper quadrant pain, and weight loss) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). II. PTSD Effective Date The issues on appeal pertaining to the effective date for the award of service connection for PTSD arise from a September 2009 informal claim by telephone by the Veteran whereby he requested to file a claim for an earlier effective date due to CUE. He contended that the effective date should be December 6, 1972, which is his last day of active service. The issue was certified to the Board as entitlement to an earlier effective date of service connection for PTSD with major depression and whether the effective date for PTSD with major depression was a CUE. The Board characterized the matter as two issues in April 2011 prior to the June 2011 Board hearing. By way of background, the Veteran submitted an application for benefits in February 1975 that included a claim of service connection for a psychiatric disorder. In an August 1975 rating decision, the RO denied a claim of service connection for nervous disorder, including more specifically organic brain syndrome with convulsive disorder and sociopathic personality. The Veteran was notified of the decision in September 1975. He subsequently submitted another application for benefits in March 1982 that included a claim of service connection for nervous condition. In April 1982, the RO indicated that it would not take action on the claim without the submission of new and material evidence. The Veteran then submitted another application for benefits that was received on April 27, 1995, which included a claim of service connection for multiple psychiatric disorders. In a November 1995 rating decision, the RO denied entitlement to service connection for a nervous condition as new and material evidence was not received to reopen the claim. However, in a January 1997 rating decision, the RO granted service connection for PTSD. A 10 percent rating was awarded effective April 27, 1995. An August 1997 rating decision confirmed and continued the 10 percent rating. After the Veteran appealed, the RO issued an April 1998 rating decision whereby a 100 percent rating was awarded for PTSD effective April 27, 1995-the effective date of the award of service connection. After the 100 percent rating was granted, the Veteran appealed for an earlier effective date for the PTSD award. The RO addressed both the merits of the assignment of April 27, 1995 as the effective date, and whether there was CUE in the August 1975 rating decision. The appeal was perfected and the Board addressed the matter in an April 2002 decision. Significantly, in the April 2002 decision, the Board denied entitlement to an effective date prior to April 27, 1995, both on the merits arising from the award of the effective date and on the basis that the August 1975 rating decision did not contain CUE. First, as to the issue of entitlement to an earlier effective date prior to April 27, 1995, for the grant of service connection for PTSD, the Board finds that this issue was addressed on the merits by the Board in the April 2002 decision. The Board determined that April 27, 1995, is the earliest possible effective date for service-connected PTSD because this was the date of receipt of the new claim following a previously denied final decision. See 38 C.F.R. § 3.400. When a determination of the AOJ is affirmed by the Board, such determination is subsumed by the final appellate decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1104; see also Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000) ("when a veteran timely appeals an RO determination to the Board, and the Board affirms that determination, the RO determination is regarded as subsumed by the Board's decision."). In the Veteran's case, the Board addressed the assignment of the effective date for the award of service connection for PTSD with a 100 percent rating in the April 2002 decision finding that the effective date could not be earlier than April 27, 1995. Thus, the RO's determination was "affirmed" and the Board's decision subsumed the determination. Consequently, the Veteran may not raise a challenge to the determination with the RO. "The rationale for that rule is that it is improper for a lower tribunal (the RO) to review the decision of a higher tribunal (the Board of Veterans' Appeals)." Id. (citing Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994)). In view of the above, the Veteran is precluded from challenging the assignment of the effective date for the award of service connection for PTSD, including on the basis of whether CUE was committed in the January 1997 or April 1998 RO rating decision, because the April 2002 Board decision subsumed the determination of the effective date. Moreover, to the extent the Veteran's claim for an earlier effective date is a "freestanding" claim, this is precluded as such a claim would vitiate the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Consequently, the Board will dismiss this aspect of the Veteran's appeal for lack of jurisdiction. The recourse that remains for the Veteran is to file a motion to revise the April 2002 Board decision on the basis of CUE. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. The Board does not discern from the claims file that such a motion has been filed even with a sympathetic reading of the Veteran's submissions. Next, as to the issue of whether CUE was committed by the RO, the Board interprets the Veteran's statements and testimony from the June 2011 Board hearing as a contention that CUE was committed in the August 1975 rating decision that denied his claim of service connection for a psychiatric disorder. The Veteran and his representative contend that the Veteran was misdiagnosed when he initially filed his claim in 1975 and that he had PTSD all along, but it was not a known psychiatric disorder at the time. Additionally, a contention was made that the laws and regulations were misapplied by the RO in the August 1975 rating decision, particularly as to those pertaining to a disability that preexisted service. In regard to CUE challenges, only one CUE challenge to a Board decision on any given disability claim is permitted. See Hillyard v. Shinseki, 695 F.3d 1257, 1260 (Fed. Cir. 2012). However, multiple CUE challenges to a RO decision are not prohibited if based on different theories of CUE. Identical theories of CUE are not permitted due to res judicata. See id. Additionally, "a Board decision that considers a collateral attack on a final, unappealed RO determination can subsume that unappealed RO determination under certain circumstances." Brown, 203 F.3d at 1381. "In a case in which the Board's decision subsumes an unappealed RO determination on collateral attack, the veteran may not challenge the original RO determination as containing clear and unmistakable error, but must proceed before the Board and urge that there was clear and unmistakable error in the Board decision that subsumed the unappealed RO determination." Id. In the Veteran's case, his theories of CUE in the August 1975 rating decision were already addressed by the Board's April 2002 decision. The Board determined that there was no indication that the relevant laws were misapplied, including those pertaining to preexisting injuries. Additionally, the Board determined that there was no evidence of a deliberate misdiagnosis in an April 1975 VA examination and that even a mistaken diagnosis would not provide the basis for CUE. In view of the fact that the April 2002 Board decision considered the Veteran's present theories of CUE in the August 1975 RO rating decision, his CUE challenge has already been addressed by the Board and he is precluded from challenging the original RO determination as containing CUE in this manner. See Hillyard, 695 F.3d at 1260; Brown, 203 F.3d at 1381. The Veteran must either specify a new theory of CUE in the August 1975 rating decision, which the Board does not discern from the record even with a sympathetic reading of his submissions, or file a motion to revise the April 2002 Board decision on the basis of CUE as discussed above. Consequently, the Board will also dismiss this aspect of the Veteran's appeal for lack of jurisdiction. ORDER A 40 percent rating for hepatitis C is granted, subject to the laws and regulations governing the payment of monetary awards. The appeal of the issue of entitlement to an earlier effective date prior to April 27, 1995, for the grant of service connection for PTSD, is dismissed. The appeal of the issue of whether the RO committed CUE in an August 1975 rating decision that denied entitlement to service connection for a psychiatric disorder is dismissed. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs