Citation Nr: 1644466 Decision Date: 11/25/16 Archive Date: 12/02/16 DOCKET NO. 12-31 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than October 7, 2005 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 1966 to December 1969. This matter comes before the Board of Veterans Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied an effective date earlier than October 7, 2005 for the grant of service connection for PTSD. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2016. A transcript of his hearing has been associated with the claims file. FINDINGS OF FACT 1. In a July 9, 2008 rating decision, the RO granted service connection for PTSD and assigned an effective date of October 7, 2005, the date of receipt of the Veteran's claim for service connection. A notice of disagreement with the effective date assigned was not received within one year of the date of that decision. 2. In correspondence received on March 29, 2010, the Veteran asserted that the effective date for the grant of service connection for PTSD should be in 1999, the date he submitted an earlier claim. CONCLUSION OF LAW To the extent that he is attempting to disturb the finality of the July 2008 rating decision, the Veteran's claim of entitlement to an effective date earlier than October 7, 2005, for the grant of service connection for PTSD, is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Analysis Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1) (West 2015). The Veteran filed a claim of entitlement to service connection for depression and panic attacks which was received by the RO on October 26, 1999. In a June 2000 rating decision, the RO granted entitlement to nonservice-connected pension. The code sheet appended to that rating decision indicates that psychiatric disorders were considered for pension eligibility only. The Veteran filed claim of entitlement to service connection for PTSD in October 2005. In a July 2008 rating decision, the RO granted service connection for PTSD and assigned an effective date of October 7, 2005. In March 2010, the Veteran asserted that the effective date for the grant of service connection for PTSD should be the date of receipt of the claim filed in 1999. While it is sympathetic to the Veteran's arguments, the Board finds that the claim of entitlement to an effective date earlier than October 7, 2005, for the grant of service connection for PSTD must be dismissed as a matter of law. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a rating decision has become final, as is the case here with the July 2008 rating decision which granted service connection for PTSD, a claimant 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 RO decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of the recognized statutory exceptions to finality. See Rudd, 20 Vet. App. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary). In DiCarlo, the Federal Circuit specifically held that, "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." Id. at pp. 55-56 (citations omitted). In this case, it is undisputed that the July 2008 rating decision, which granted service connection and assigned an effective date of October 7, 2005, is final because the Veteran did not initiate a timely appeal by a filing a Notice of Disagreement or otherwise disagreeing with this decision, to include the effective date assigned therein. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran essentially seeks revision of the prior final 2008 rating decision by means of a claim for an effective date earlier than October 7, 2005, for the grant of service connection for PTSD. While the Board expresses no opinion on the eventual success of a motion for revision of a prior final decision on the basis of clear and unmistakable error (CUE), the proper way to assert error in a final decision would be through an allegation that the RO's 2008 decision contained CUE. 38 U.S.C. § 5109A; see Moody v. Principi, 360 F.3d 1306, 1309 (Fed.Cir.2004). The Veteran is advised in this regard that a mere disagreement with how the facts were weighed in a prior final rating decision does not rise to the level of a valid CUE claim. See, for example, Luallen v. Brown, 8 Vet. App. 92, 96 (1995), and Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Board cannot adjudicate the Veteran's earlier effective date claim to the extent that it attempts to reopen a prior final rating decision, including on the basis of CUE, without violating the Court's express prohibition against freestanding earlier effective date claims found in Rudd. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, there is no legal entitlement to an effective date earlier than October 7, 2005 for the grant of service connection for PTSD. Sabonis v. Brown, 6 Vet. App. 426 (1994) (When the law and not the evidence is dispositive, a claim for entitlement to VA benefits 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). ORDER The claim of entitlement to an effective date prior to October 7, 2005 for the grant of service connection for PTSD is dismissed. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs