Citation Nr: 1753341	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-06 044	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an earlier effective date than May 10, 2012 for the grant of a 100 percent disability rating for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Chad Johnson, Counsel




INTRODUCTION

The Veteran had active service from January 1986 to May 1986 and from January 1988 to January 1992, including service in the Southwest Asia Theater of Operations from December 1990 to May 1991.  

This matter comes to the Board of Veterans' Appeals (Board) from August 2010 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Veteran's February 2014 VA Form 9 substantive appeal requested a videoconference hearing before the Board; however, after proper notice in February 2017, he subsequently failed to appear for a scheduled hearing in March 2017.  As such, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(c)-(d) (2017).  


FINDINGS OF FACT

1.  An August 2010 rating decision granted service connection for PTSD and assigned an initial 30 percent disability rating, effective February 8, 2009, after which the Veteran properly initiated an appeal with respect to the initial disability rating assigned.  

2.  Thereafter, a subsequent November 2012 rating decision granted an increased 100 percent disability rating for PTSD, effective May 10, 2012, after which the Veteran initiated another appeal seeking an earlier effective date than May 10, 2012 for the grant of an increased 100 percent disability rating.  

3.  A June 2014 Board decision granted an initial 70 percent disability rating for PTSD from February 8, 2009 to May 10, 2012, but also denied a 100 percent disability rating for the same staged rating period, after which the Veteran did not request reconsideration or file a timely notice of appeal.  
CONCLUSIONS OF LAW

1.  The June 2014 Board decision which denied a 100 percent disability rating for PTSD from February 8, 2009 to May 10, 2012 is final.  38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1100(a) (2017).  

2.  Entitlement to an earlier effective date than May 10, 2012 for the grant of a 100 percent disability rating for PTSD is denied as a matter of law.  38 U.S.C. § 7104 (2012); 38 C.F.R. § 3.105 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

When a claim is denied in a rating or Board decision, and the claimant fails to timely perfect an appeal of that decision in the manner set forth by law that rating or Board decision is final and the claim may not thereafter be reopened or allowed, except upon a showing that the prior final decision contained clear and unmistakable error.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 3.105 (2017).  

Where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final decision, in the absence of an attempt to vitiate the finality of that decision through an allegation of clear and unmistakable error, the claimant has merely raised a "freestanding" effective date claim that cannot remove the finality of the prior decision.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  

The Board is mindful of the procedural history of the Veteran's claim.  He first initiated an appeal following an August 2010 rating decision which granted service connection for PTSD and assigned an initial 30 percent disability rating, effective February 8, 2009.  

A subsequent November 2012 rating decision granted an increased 100 percent disability rating for PTSD, effective May 10, 2012, after which the Veteran initiated a separate appeal seeking an earlier effective date than May 10, 2012 for the grant of an increased 100 percent disability rating.  

Thereafter, a June 2014 Board decision properly noted that the November 2012 rating decision did not represent a full grant of benefits sought on appeal as the 100 percent disability rating was not assigned from the effective date of the grant of service connection for PTSD.  The Board proceeded to adjudicate the claim of entitlement to an initial disability rating in excess of 30 percent from February 8, 2009 to May 10, 2012.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  Indeed, the June 2014 Board decision ultimately granted an initial 70 percent disability rating for PTSD from February 8, 2009 to May 10, 2012, but also denied a 100 percent disability rating for the same staged rating period, after which the Veteran did not request reconsideration or file a timely notice of appeal; therefore, the June 2014 Board decision is final.  38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1100(a) (2017).  

As such, although the current issue of entitlement to an earlier effective date was certified to the Board separate from the Veteran's initial rating appeal, the issue was in fact previously adjudicated within the final June 2014 Board decision as part of the Veteran's overlapping initial rating appeal which also encompassed his appeal regarding the effective date of the assigned 100 percent disability rating.  See AB, 6 Vet. App. at 38.  

Therefore, to the extent the Veteran and his representative have continued to express disagreement with the May 10, 2012 effective date for the grant of a 100 percent disability rating for PTSD, the Board finds that such a claim, absent an assertion of clear and unmistakable error (CUE) within the prior final June 2014 Board decision, essentially constitutes a freestanding earlier effective date claim which is denied as a matter of law.  See Rudd, 20 Vet. App. 296.  

Finally, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  


ORDER

Entitlement to an earlier effective date than May 10, 2012 for the grant of a 100 percent disability rating for PTSD is denied as a matter of law.  




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs