Citation Nr: 1502399 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 12-27 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an effective date prior to April 9, 2009, for the grant of service connection for anxiety disorder, not otherwise specified, with features of posttraumatic stress disorder (PTSD) and depressive symptoms. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. However, the Veteran later cancelled his hearing request. The Board has reviewed the Veteran's electronic records (Virtual VA and VBMS) prior to rendering a decision in this case. The issue of whether clear and unmistakable error (CUE) exists in a September 2009 rating decision of the RO, which granted entitlement to service connection for PTSD, effective April 9, 2009, has been raised by the record in a June 2014 statement, 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. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. In a September 2009 decision, the RO granted entitlement to service connection for PTSD, effective April 9, 2009. The Veteran did not file a notice of disagreement with the effective date assigned. 2. In August 2011, the Veteran requested an earlier effective date for his service-connected PTSD. CONCLUSIONS OF LAW 1. The September 2009 decision which granted entitlement to service connection for PTSD, and assigned an effective date of April 9, 2009, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103 (2014). 2. The appellant's freestanding claim for an earlier effective date for the award of service connection for PTSD must fail as a matter of law, and the appeal is dismissed. 38 U.S.C.A. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes, as set forth in more detail below, the facts in this case are not in dispute and the appellant's appeal must be dismissed as a matter of law. Thus, the VCAA is not applicable in this case. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive); see also VAOPGCPREC 5- 2004 (holding that under 38 U.S.C. § 5103(a), 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). As the Veteran's June 2014 allegations regarding CUE in the September 2009 rating decision have not been addressed, the matter has been referred to the RO for proper action. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for an earlier effective date for the grant of service connection for PTSD while referring his motion for CUE to the RO. Specifically, the Board questions whether the two issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Board finds no such relationship. The outcome of the Veteran's claim for an earlier effective is not dependent on the outcome of his CUE claim. The Veteran's earlier effective claim is being denied by operation of law. The outcome of the claim for CUE would, at best, render moot the effective date claim. Indeed, the Board notes that the United States Court of Appeals for Veterans Claims (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). II. Laws and Regulations Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The Board notes the Veteran's initial claim of entitlement to service connection for PTSD was received in June 1990; however, this claim was denied by means of a March 1991 RO decision, and he did not file a timely appeal of this decision. Appellate review of a rating decision is initiated by the timely submission of a notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, completed by the timely submission of a substantive appeal (VA Form 9 or equivalent). 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 710; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Except as otherwise provided, 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 a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447 (2004), aff'd Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). Consistent with the above-described prior case law, the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. III. Factual Background and Analysis By way of history, the Board notes that the Veteran was initially denied entitlement to service connection for PTSD in a March 1991 rating decision. He did not appeal this decision. Service connection was again denied for PTSD in December 1992 and July 1994 rating decisions. Again, the Veteran did not appeal the denial of service connection for PTSD in either of these decisions. In April 2009, the Veteran filed another claim to reopen a claim of entitlement to service connection for PTSD, and his claim was denied in a September 2009 rating decision. The Veteran subsequently submitted additional medical evidence, and in a later September 2009 decision, service connection was granted for PTSD with an effective date of April 9, 2009 (the date of his claim to reopen). The Veteran did not appeal the effective date assigned and it became final. In August 2011, the Veteran filed a claim for an earlier effective date for the award of service connection for PTSD. The August 2011 claim was a "freestanding" earlier effective date claim, which, as described above, is not allowed as a matter of law. In May 2012, the RO adjudicated the claim and denied entitlement to an earlier effective date. This appeal ensued. To the extent that the Veteran has argued a DD-215 reflects receipt of certain decorations that would have been determinative when the decision on his claim was first made, the Board notes that this document was not issued until 2010. See 38 C.F.R. § 3.156(c) ("Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim.") (emphasis added). As noted, the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd, supra. The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. The Court further held, however, that because the proper effective date for an award based on a claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. See Leonard, 405 F.3d 1333 at 1337 (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). In short, as the September 2009 decision wherein the RO granted entitlement to service connection for PTSD, effective April 9, 2009, was not appealed, the claim seeking an earlier effective date lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be dismissed due to a lack of legal merit). The Board again emphasizes that this decision has no impact on the issue of whether a September 2009 rating decision of the RO, which granted entitlement to service connection for PTSD, effective April 9, 2009, contains CUE, which has been referred to the RO for appropriate adjudication. Final Matter Finally, the Board notes that this decision should represent, as best as can be determined, what the Veteran's representative requested. To this end, the Board notes that the Veteran's counsel (the Board takes notice that the representative that wrote the Veteran's brief before the Board is in fact an attorney) properly provided candor to this tribunal in his argument. Specifically, the attorney stated, "[t]he Veteran's request for entitlement to an earlier effective date for service connection for PTSD is essentially a 'freestanding' claim which must be dismissed as a matter of law. See Rudd v. Nicholson, 20 Vet. App. 296 (2006)." Thus, given the entire record before it, the Board trusts that both the Veteran and his counsel are satisfied with this decision. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) ("[T]he Board ... was entitled to assume that the arguments presented by [the appellant] were limited for whatever reason under the advice of counsel and that those were the theories upon which he intended to rely."), aff'd, 724 F.3d 1325 (Fed. Cir. 2013); Mason v. Shinseki, 25 Vet. App. 83, 95 (2011) (holding that "the Court will not invent an argument for a represented party who had ample opportunity and resources to make that same argument, but, for whatever reason-be it strategy, oversight, or something in between-did not do so"). ORDER The request for an effective date prior to April 9, 2009, for the award of service connection for anxiety disorder, not otherwise specified, with features of PTSD and depressive symptoms, is dismissed. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs